FREEDOM OF 

INFORMATION ACT

Agencies Are 

Implementing 

Requirements but Need to 

Take Additional Actions

Statement of David A. Powner, Director, Information 

Technology Management Issues

Testimony 

Before the Committee on Judiciary, 

U. S. Senate 

For Release on Delivery 

Expected at 10:15 a.m. ET

Tuesday, March 13, 2018

GAO-18-452T

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-18-452T, a testimony 

before the Committee on the Judiciary, U. S. 

Senate

March 2018

FREEDOM OF INFORMATION ACT

Agencies Are Implementing Requirements but Need

to Take Additional Actions

What GAO Found

In its draft report, GAO determined that all 18 selected agencies had 

implemented three of six Freedom of Information Act (FOIA) requirements

reviewed. Specifically, all agencies had updated response letters to inform 

requesters of the right to seek assistance from FOIA public liaisons, 

implemented request tracking systems, and provided training to FOIA personnel.

For the three additional requirements, 15 agencies had provided online access to

government information, such as frequently requested records, 12 agencies had 

designated chief FOIA officers, and 5 agencies had published and updated their 

FOIA regulations to inform the public of their operations. Until these agencies 

address all of the requirements, they increase the risk that the public will lack 

information that ensures transparency and accountability in government

operations.

The 18 selected agencies had backlogs of varying sizes, with 4 agencies having 

backlogs of 1,000 or more requests during fiscal years 2012 through 2016. 

These 4 agencies reported using best practices identified by the Department of 

Justice, such as routinely reviewing metrics, as well as other methods, to help 

reduce their backlogs. Nevertheless, these agencies’ backlogs fluctuated over

the 5-year period (see figure). The 4 agencies with the largest backlogs 

attributed challenges in reducing their backlogs to factors such as increases in 

the number and complexity of FOIA requests. However, these agencies lacked 

plans that described how they intend to implement best practices to reduce 

backlogs. Until agencies develop such plans, they will likely continue to struggle 

to reduce backlogs to a manageable level. 

Number of Backlogged FOIA Requests for Selected Agencies, Fiscal Years 2012-2016

Agencies used various types of statutory exemptions to withhold information 

when processing FOIA requests during fiscal years 2010 to 2016. The majority of 

these fell into the following categories: personally identifiable information, 

national security, law enforcement and investigations, and confidential and 

commercial business information.

View GAO-18-452T. For more information, 

contact David A. Powner at (202) 512-9286 or 

pownerd@gao.gov.

Why GAO Did This Study

FOIA requires federal agencies to 

provide the public with access to 

government records and information 

based on the principles of openness 

and accountability in government. 

Each year, individuals and entities file 

hundreds of thousands of FOIA 

requests for information on numerous 

topics that contribute to the 

understanding of government actions. 

In the last 9 fiscal years, federal 

agencies subject to FOIA have 

received about 6 million requests. 

GAO was asked to summarize its draft 

report on federal agencies’ compliance 

with FOIA requirements. GAO’s 

objectives, among others, were to (1) 

determine the extent to which agencies 

have implemented selected FOIA 

requirements; (2) describe the 

methods established by agencies to 

reduce backlogged requests and the 

effectiveness of those methods; and

(3) identify any statutory exemptions 

that have been used by agencies as 

the basis for withholding (redacting) 

information from requesters.

To do so, GAO selected 18 agencies 

based on their size and other factors 

and assessed their policies against six 

FOIA requirements. GAO also

reviewed the agencies’ backlog 

reduction plans and developed a 

catalog of statutes that agencies have 

used to withhold information.

What GAO Recommends

GAO’s draft report contains 

recommendations to selected

agencies to post records online, 

designate chief FOIA officers, update 

regulations consistent with 

requirements, and develop plans to 

reduce backlogs.
Page 1 GAO-18-452T 

Chairman Grassley, Ranking Member Feinstein, and Members of the 

Committee

Thank you for the opportunity to participate in today’s hearing on the 

Freedom of Information Act (FOIA). As you know, FOIA was enacted into 

law more than 50 years ago, requires federal agencies to provide the 

public with access to government records and information based on the 

principles of openness and accountability in government.1 Each year, 

individuals and entities file hundreds of thousands of FOIA requests for 

information on numerous topics that contribute to the understanding of 

government actions. In the last 9 fiscal years, agencies subject to FOIA 

have reported receiving about 6 million requests.

Given the significance of FOIA, Congress has had a longstanding interest 

in the manner in which the act is being implemented, including the extent 

to which federal agencies respond to FOIA requests, the timeliness of the 

responses, and the number and nature of exemptions claimed by 

agencies in withholding requested information. Since 1978, we have 

issued a number of reports that have addressed various aspects of 

federal agencies’ efforts to implement the act.2

As requested, this statement summarizes key preliminary findings based 

on our draft report reviewing, among other things, federal agencies’

compliance with FOIA requirements, backlogs, and use of exemptions. 

Specifically, this statement (1) determines the extent to which agencies 

have implemented selected FOIA requirements; (2) describes the 

methods established by agencies to reduce backlogged requests and the 

effectiveness of those methods; (3) identifies any statutory (b)(3) 

exemptions that have been used by agencies as the basis for withholding 

 1

5 U.S.C. § 552. 

2

For example, GAO, Freedom of Information Act: Litigation Costs for Justice and 

Agencies Could Not Be Fully Determined, GAO-16-667 (Washington, D.C.: Sept. 08, 

2016); GAO, Freedom of Information Act: Department of Labor Can Improve Management 

of Its Program, GAO-16-248 (Washington, D.C.: June 02, 2016); GAO, Freedom of 

Information Act: Additional Actions Can Strengthen Agency Efforts to Improve 

Management, GAO-12-828 (Washington, D.C.: July 31, 2012); and GAO, Report By The 

Comptroller General Of The United States: Government Field Offices Should Better 

Implement The Freedom Of Information Act, LCD-78-120 (Washington, D.C.: July 25, 

1978).
Page 2 GAO-18-452T 

(redacting) information.3 The draft report on FOIA compliance is currently 

out for comment with selected agencies. Accordingly, the draft report is 

subject to revision prior to final issuance, expected in April 2018.

In our FOIA draft report, for our first and second objectives, we reviewed 

the FOIA-related actions of a nonprobability sample of federal agencies.

We identified these agencies by considering the following factors: the 

number of FOIA requests received, the sizes of FOIA backlogs, and the 

average time for processing FOIA requests for fiscal years 2012 through 

2016. We also chose the agencies to represent a range of sizes (by 

number of employees)—large (10,000 or more), medium (1,000 to 9,999), 

and small (999 or fewer). Based on these criteria, we selected 18 

agencies for our review.4

For the first objective, we reviewed six FOIA requirements outlined in the 

FOIA Improvement Act of 2016 and the OPEN Government Act of 2007.

5

These specific requirements call for agencies to (1) update response 

letters, (2) implement tracking systems, (3) provide FOIA training, (4), 

provide required records online, (5) designate chief FOIA officers, and (6) 

update and publish timely and comprehensive regulations. We then 

obtained and reviewed available documentation from the 18 selected 

agencies describing their decisions and actions related to the 

 3

For the purposes of this testimony, we define a statutory (b)(3) exemption as a federal 

statute that a federal agency has claimed, or could reasonably claim, as authority for 

withholding information when answering a FOIA request as permitted under exemption 3 

of FOIA (5 U.S.C. § 552(b)(3)). We refer to this exemption as the statutory (b)(3) 

exemption.

4

The 18 agencies were the Administrative Conference of the United States, American 

Battle Monuments Commission, Broadcasting Board of Governors, Department of 

Homeland Security, Department of Interior, Department of Justice, Department of State, 

Equal Employment Opportunity Commission, Federal Deposit Insurance Corporation, 

Federal Trade Commission, National Aeronautics and Space Administration, National 

Archives and Records Administration, National Transportation Safety Board, Office of 

Management and Budget, Pension Benefit Guaranty Corporation, Tennessee Valley 

Authority, U.S. African Development Foundation, and U.S. Agency for International 

Development. 

5

FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016) (provisions 

codified at 5 U.S.C. § 552) and Pub. L. No. 110-175 (Dec. 31, 2007). According to the 

Department of Justice, the act addressed a range of procedural issues, including 

requirements that agencies establish a minimum of 90 days for requesters to file an 

administrative appeal and that agencies provide dispute resolution services at various 

times throughout the FOIA process. The act also codified the department’s “foreseeable 

harm” standard, amended exemption 5, creates a new FOIA Council, and added two new 

elements to agency annual FOIA reports.
Page 3 GAO-18-452T 

requirements. We also interviewed relevant officials at each selected 

agency, the Office of Management and Budget (OMB) and the 

Department of Justice’s (Justice) Office of Information Policy (OIP) to 

discuss the status of efforts to develop a government-wide FOIA request 

portal, as required by the 2016 amendments to FOIA. The findings related 

to our first objective are not generalizable to the 117 FOIA reporting 

agencies.

For the second objective, we first reviewed requirements for agencies to 

produce backlog reduction plans, as outlined in Justice’s annual chief 

FOIA officer report guidance and OMB’s Open Government Directive of 

2009. We then determined whether agencies had developed such plans 

as required, by interviewing relevant agency personnel and reviewing 

existing plans. Further, we analyzed data on Justice’s FOIA.gov website 

to identify any instances of a reported reduction in an agency’s FOIA 

backlog when the agency had a backlog reduction plan in place.

To address the third objective, we developed a catalog of (b)(3) statutes 

that agencies previously have used to withhold information in FOIA 

records under the (b)(3) exemption.6 To develop the catalog, we compiled 

a list of (b)(3) exemptions, along with the number of times each 

exemption was used by at least 1 of 117 agencies for which annual FOIA 

report data covering fiscal years 2010 through 2016 were available on 

Justice’s FOIA.gov website and could use.7

In addition, this statement summarizes our findings based on an 

additional report, being issued today, which provides information 

regarding federal court decisions that pertain to the improper withholding 

of FOIA records. For this report we reviewed Justice’s annual FOIA 

Litigation and Compliance reports for calendar years 2008 through 2016 

to identify instances in which the department had notified OSC of a 

 6

Agencies available on FOIA.gov include federal agencies and other entities subject to 

FOIA.

7

Justice’s website, called FOIA.gov, presents electronic versions of data from agencies 

annual FOIA reports that are required to be submitted to Justice and includes information 

such as what (b)(3) statutes are used by an agency. To identify what (b)(3) exemption 

statutes were used by agencies, in a readily available and aggregate form, we collected 

(b)(3) exemption statute data on FOIA.gov that spanned from fiscal year 2010 through 

fiscal year 2016. We chose these years because Justice acknowledged that data prior to 

2010 were not reliable. Therefore, our scope was limited to fiscal years 2010 to 2016, 

which consisted of 117 agencies that reported to Justice for at least one fiscal year during 

this time period. Fiscal year 2017 data was not yet available at the time of our review. 
Page 4 GAO-18-452T 

lawsuit regarding improperly withheld FOIA records. We focused our 

review on these specific years because the OPEN Government Act of 

2007 amended FOIA to require Justice to report on court findings.8

Justice began including this information in its 2008 FOIA Litigation and 

Compliance reports, and at the time of our review, had completed reports 

through calendar year 2016.

The work upon which this testimony is based is being conducted in 

accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

The Freedom of Information Act establishes a legal right of access to 

government information on the basis of the principles of openness and 

accountability in government. Before FOIA’s enactment in 1966,9 an 

individual seeking access to federal records faced the burden of 

establishing a “need to know” before being granted the right to examine a 

federal record. FOIA established a “right to know” standard, under which 

an organization or person could receive access to information held by a 

federal agency without demonstrating a need or reason. The “right to 

know” standard shifted the burden of proof from the individual to a 

government agency and required the agency to provide proper 

justification when denying a request for access to a record.

Any person, defined broadly to include attorneys filing on behalf of an 

individual, corporations, or organizations, can file a FOIA request. For 

example, an attorney can request labor-related workers’ compensation 

files on behalf of his or her client, and a commercial requester, such as a 

data broker who files a request on behalf of another person, may request 

a copy of a government contract. In response, an agency is required to 

provide the relevant record(s) in any readily producible form or format 

specified by the requester, unless the record falls within a permitted 

exemption that provides limitations on the disclosure of information.

 8

Openness Promotes Effectiveness in our National Government Act of 2007, Pub. L. No. 

110-175 (Dec. 31, 2007). 

9

The law was enacted in 1966 and went into effect in 1967.

Background
Page 5 GAO-18-452T 

Various amendments have been enacted and guidance issued to help 

improve agencies’ processing of FOIA requests, including:

• The Electronic Freedom of Information Act Amendments of 1996 (eFOIA amendments) strengthened the requirement that federal 

agencies respond to a request in a timely manner and reduce their 

backlogged requests.10 The amendments, among other things, made 

a number of procedural changes, including allowing a requester to 

limit the scope of a request so that it could be processed more quickly 

and requiring agencies to determine within 20 working days whether a 

request would be fulfilled. This was an increase from the previously 

established time frame of 10 business days.11

The amendments also authorized agencies to multi-track requests—

that is, to process simple and complex requests concurrently on 

separate tracks to facilitate responding to a relatively simple request 

more quickly. In addition, the amendment encouraged online, public 

access to government information by requiring agencies to make 

specific types of records available in electronic form.

• Executive Order 13392, issued by the President in 2005, directed 

each agency to designate a senior official as its chief FOIA officer.12

This official was to be responsible for ensuring agency-wide 

compliance with the act by monitoring implementation throughout the 

agency and recommending changes in policies, practices, staffing, 

and funding, as needed. The chief FOIA officer was directed to review 

and report on the agency’s performance in implementing FOIA to 

agency heads and to Justice on an annual basis. (These are referred 

to as chief FOIA officer reports.)

The OPEN Government Act, which was enacted in 2007, made the 2005 

executive order’s requirement for agencies to have a chief FOIA officer a 

 10Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231 (Oct. 

2, 1996).

11The 20-day time period to respond to a request may be extended beyond 30 days in 

certain circumstances. For example, the agency may notify the person making the request 

that the time limit cannot be met and provide the person with an opportunity to limit the 

scope of the request so that it may be processed within that time limit or an opportunity to 

arrange with the agency an alternative time frame for processing the request.

12Executive Order 13392, Improving Agency Disclosure of Information (Washington, D.C.: 

Dec. 14, 2005).

FOIA Amendments and 

Guidance Call for 

Improvements in How 

Agencies Process 

Requests
Page 6 GAO-18-452T 

statutory requirement.13 It also required agencies to submit an annual 

report to Justice outlining their administration of FOIA,14 including 

additional statistics on timeliness. Specifically, the act called for agencies 

to adequately track their agency’s FOIA request processing information 

throughout the reporting year and then produce reports on that topic to 

comply with FOIA reporting requirements and Justice guidance for 

reporting.

• The FOIA Improvement Act of 2016 addressed procedural issues, 

including requiring that agencies: (1) make records available in an 

electronic format if they have been requested three or more times; (2) 

notify requesters that they have a minimum of 90 days to file an 

administrative appeal, and (3) provide dispute resolution services at 

various times throughout the FOIA process.15 This act also created 

more duties for chief FOIA officers, including requiring them to offer 

training to agency staff regarding FOIA responsibilities. The act also 

revised and added new obligations for OGIS, and created the Chief 

FOIA Officers Council to assist in compliance and efficiency. Further, 

the act required OMB, in consultation with Justice, to create a 

consolidated online FOIA request portal that allows the public to 

submit a request to any agency through a single website.

In responding to requests, FOIA authorizes agencies to utilize one of nine 

exemptions to withhold portions of records, or the entire record. Agencies 

may use an exemption when it has been determined that disclosure of the 

requested information would harm an interest related to certain protected 

areas. These nine exemptions can be applied by agencies to withhold 

various types of information, such as information concerning foreign 

relations, trade secrets, and matters of personal privacy.

One such exemption, the statutory (b)(3) exemption, specifically 

authorizes withholding information under FOIA on the basis of a law 

which:

 13Openness Promotes Effectiveness in our National Government Act of 2007, Pub. L. No. 

110-175 (Dec. 31, 2007).

14The Office of Government Information Services resides within NARA.

15FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016) (provisions 

codified at 5 U.S.C. § 552).

FOIA Authorizes Agencies 

to Use Other Federal 

Statutes to Withhold 

Information Prohibited 

from Disclosure
Page 7 GAO-18-452T 

• requires that matters be withheld from the public in such a manner as 

to leave no discretion on the issue; or

• establishes particular criteria for withholding or refers to particular 

types of matters to be withheld; and

• if enacted after October 28, 2009, specifically refers to section 

552(b)(3) of title 5, United States Code.

To account for agencies use of the statutory (b)(3) exemptions, FOIA 

requires each agency to submit, in its annual report to Justice, a complete 

listing of all statutes that the agency relied on to withhold information 

under exemption (b)(3). The act also requires that the agency describe for 

each statute identified in its report (1) the number of occasions on which 

each statute was relied upon; (2) a description of whether a court has 

upheld the decision of the agency to withhold information under each 

such statute; and (3) a concise description of any information withheld. 16

Further, to provide an overall summary of the statutory (b)(3) exemptions 

used by agencies in a fiscal year, Justice produces consolidated annual 

reports that list the statutes used by agencies in conjunction with (b)(3).

As previously noted, agencies are generally required by the e-FOIA 

amendments of 1996 to respond to a FOIA request within 20 working 

days. Once received, the request is to be processed through multiple 

phases, which include assigning a tracking number, searching for 

responsive records, and releasing the records response to the requester.

Also, as relevant, FOIA allows a requester to challenge an agency’s final 

decision on a request through an administrative appeal or a lawsuit. 

Specifically, a requester has the right to file an administrative appeal if he 

or she disagrees with the agency’s decision on their request. Agencies 

have 20 working days to respond to an administrative appeal.

Figure 1 provides a simplified overview of the FOIA request and appeals 

process.

 16 5 U.S.C. § 552(e)(1)(B)(ii).

Processing a FOIA 

Request
Page 8 GAO-18-452T 

Figure 1: Simplified Overview of the Federal Government’s Freedom of Information Act Request and Appeal Process

In a typical agency, as indicated, during the intake phase, a request is 

logged into the agency’s FOIA tracking system, and a tracking number is 

assigned. The request is then reviewed by FOIA staff to determine its 
Page 9 GAO-18-452T 

scope and level of complexity.17 The agency then typically sends a letter 

or email to the requester acknowledging receipt of the request, with a 

unique tracking number that the requester can use to check the status of 

the request.

Next, FOIA staff (non-custodian) begin the search to retrieve the 

responsive records by routing the request to the appropriate program 

office(s).This step may include requesting that the custodian (owner) of 

the record search and review paper and electronic records from multiple 

locations and program offices.

Agency staff then process the responsive records, which includes 

determining whether a portion or all of any record should be withheld 

based on FOIA’s exemptions.18 If a portion or all of any record is the 

responsibility of another agency, FOIA staff may consult with the other 

agency or may send (“refer”) the document(s) to that other agency for 

processing. After processing and redaction, a request is reviewed for 

errors and to ensure quality. The documents are then released to the 

requester, either electronically or by regular mail.

In addition, FOIA allows requesters to sue an agency in federal court if 

the agency does not respond to a request for information within the 

statutory time frames or if the requesters believe they are entitled to 

information that is being withheld by the agency. Further, the act requires 

the Office of Special Counsel (OSC) to initiate a proceeding to determine 

whether disciplinary action is warranted against agency personnel in 

cases involving lawsuits where a court has found, among other things that 

agency personnel may have acted arbitrarily or capriciously in responding 

 17Factors that increase the complexity of a request include the volume of information 

involved, the number of offices that might have responsive documents, the extent to which 

the information is technical or difficult to understand, and the need to communicate with 

third parties, such as other agencies or owners of proprietary information.

18Some FOIA requests are closed before reaching this stage, for example, if no 

responsive documents can be found, if all responsive documents originated with another 

agency and were referred to that agency for processing, or if, after being notified of fees, 

the requester is unwilling to pay the estimated fees.
Page 10 GAO-18-452T 

to a FOIA request.19 The act requires Justice to notify OSC when a 

lawsuit meets this requirement.

Responsibility for the oversight of FOIA implementation is spread across 

several federal offices and other entities. These include Justice’s OIP, 

NARA’s OGIS, and the Chief FOIA Officers Council. These oversight 

agencies and the council have taken steps to assist agencies to address 

the provisions of FOIA.

Justice’s OIP is responsible for encouraging agencies’ compliance with 

FOIA and overseeing their implementation of the act. In this regard, the 

office, among other things, provides guidance, compiles information on 

FOIA compliance, provides FOIA training, and prepares annual summary 

reports on agencies’ FOIA processing and litigation activities. The office 

also offers FOIA counseling services to government staff and the public.

• Issuing guidance. OIP has developed guidance, available on its 

website, to assist federal agencies by instructing them in how to 

ensure timely determinations on requests, expedite the processing of 

requests, and reduce backlogs.20 The guidance also informs agencies 

on what should be contained in their annual FOIA reports to Justice’s 

Attorney General.

The office also has documented ways for federal agencies to address 

backlog requests. In March 2009 the Attorney General issued 

guidance and related policies to encourage agencies to reduce their 

backlogs of FOIA requests. In addition, in December 2009, OMB 

issued a memorandum on the OPEN Government Act, which called 

for a reduction in backlogs and the publishing of plans to reduce 

backlogs. Further, in August 2014, OIP held a best practices 

workshop and issued guidance to agencies on reducing FOIA 

backlogs and improving timeliness of agencies’ responses to FOIA 

requests. The OIP guidance instructed agencies to obtain leadership 

 19OSC is an independent federal investigative and prosecutorial agency. Its primary 

mission is to safeguard the merit system in federal employment by protecting employees 

and applicants for federal employment from prohibited personnel practices, especially 

reprisal from whistleblowing. The office conducts investigations of alleged prohibited 

personnel practices, attempts informal resolution through discussion with an agency (or by 

offering mediation), and, when necessary, takes corrective or disciplinary action. 

20Department of Justice, OIP Policy: Guidance on Ensuring Timely Determination on 

Requests for Expedited Processing, (January 21, 2015).

FOIA Oversight and

Implementation
Page 11 GAO-18-452T 

support, routinely review FOIA processing metrics, and set up staff 

training on FOIA.

• Overseeing agencies’ compliance. OIP collects information on 

compliance with the act by reviewing agencies’ annual FOIA reports 

and chief FOIA officer reports. These reports describe the number of 

FOIA requests received and processed in a fiscal year, as well as the 

total costs associated with processing and litigating requests.

• Providing training. The office offers an annual training class that 

provides a basic overview of the act, as well as hands-on courses 

about the procedural requirements involved in processing a request 

from start to finish. In addition, it offers a seminar outlining successful 

litigation strategies for attorneys who handle FOIA cases.

• Preparing administrative and legal annual reports. OIP prepares two 

major reports yearly—one related to agencies’ annual FOIA 

processing and one related to agencies’ FOIA litigation and 

compliance. The first report, compiled from agencies’ annual FOIA 

reports, contains statistics on the number of requests received and 

processed by each agency, the time taken to respond, and the 

outcome of each request, as well as other statistics on FOIA 

administration such as number of backlogs, and the use of 

exemptions to withhold information from a requestor. The second 

report describes Justice’s efforts to encourage compliance with the 

act and provides a listing of all FOIA lawsuits filed or determined in 

that year, the exemptions and/or dispositions involved in each case, 

and any court-assessed costs, fees, and penalties.

NARA’s OGIS was established by the OPEN Government Act of 2007 to 

oversee and assist agencies in implementing FOIA. OGIS’s 

responsibilities include reviewing agency policies and procedures, 

reviewing agency compliance, recommending policy changes, and 

offering mediation services.

The 2016 FOIA amendments required agencies to update response 

letters to FOIA requesters to include information concerning the roles of 

OGIS and agency’s FOIA public liaisons. As such, OGIS and Justice 

worked together to develop a response letter template that includes the 

required language for agency letters. In addition, OGIS, charged with 

reviewing agency’s compliance with FOIA, launched in 2014 a FOIA 

compliance program. OGIS also developed a FOIA compliance selfassessment program, which is intended to help OGIS look for potential 

compliance issues across federal agencies.
Page 12 GAO-18-452T 

The Chief FOIA Officers Council is co-chaired by the Director of OIP 

and the Director of OGIS. Council members include senior 

representatives from OMB, OIP, and OGIS, together with the chief FOIA 

officers of each agency, among others. The council’s FOIA-related 

responsibilities include:

• developing recommendations for increasing compliance and 

efficiency;

• disseminating information about agency experiences, ideas, best

practices, and innovative approaches;

• identifying, developing, and coordinating initiatives to increase 

transparency and compliance; and

• promoting the development and use of common performance 

measures for agency compliance. Selected Agencies Collect and 

Maintain Records That Can Be Subject to FOIA Requests.

The 18 agencies selected for our review are charged with a variety of 

operations that affect many aspects of federal service to the public. Thus, 

by the nature of their missions and operations, the agencies have 

responsibility for vast and varied amounts of information that can be 

subject to a FOIA request. For example, the Department of Homeland 

Security’s (DHS) mission is to protect the American people and the 

United States homeland. As such, the department maintains information 

covering, among other things, immigration, border crossings, and law 

enforcement. As another example, the Department of the Interior’s (DOI) 

mission includes protecting and managing the Nation’s natural resources 

and, thus, providing scientific information about those resources. Table 1 

provides details on each of the 18 selected agencies’ mission and the 

types of information they maintain.
Page 13 GAO-18-452T 

Table 1: Selected Agencies’ Missions and Types of Records Maintained 

Agency Mission Examples of records maintained 

Administrative Conference of the 

United States

Develop formal recommendations and 

innovative solutions that make the government 

work better.

Information about the agency, its projects, and its 

body of research and recommendations.

American Battle Monuments 

Commission

Honor the service of the armed forces by 

designing, constructing, maintaining and 

operating permanent American cemeteries, and 

establish, maintain, and approve designs of 

memorials, markers, and monuments where 

American armed forces have served beyond our 

borders.

Final opinions related to the acceptance of 

private memorials into the Memorial Trust Fund 

Program and approval of the construction of 

private memorials.

Broadcasting Board of 

Governors

Inform, engage, and connect people around the 

world in support of freedom and democracy.

Procurement actions, audience survey reports, 

and individual personnel and/or security files.

Department of Homeland 

Security

Safeguard the American people, the U.S. 

homeland, and U.S. values.

Information covering immigration, border 

crossings, law enforcement, natural disasters, 

and maritime accidents.

Department of Interior Protect and manage the Nation’s natural 

resources and culture heritage; provide scientific 

and other information about those resources; 

and honor its trust responsibilities or special 

commitments to American Indians, Alaska 

Natives, and affiliated island communities.

Records ranging from those outlining general 

personnel rules and practices to highly specific 

case files and research materials. 

Department of Justice Enforce the law and defend the interests of the 

U.S. according to the law; ensure public safety 

against threats foreign and domestic; provide 

federal leadership in preventing and controlling 

crime; seek just punishment for those guilty of 

unlawful behavior; and ensure fair and impartial 

administration of justice for all Americans.

Information related to matters formally or 

currently under investigation, cases received and 

initiated by the department, and investigative and 

intelligence files.

Department of State Advance the interests of the American people, 

their safety and economic prosperity, by leading 

America’s foreign policy through diplomacy, 

advocacy, and assistance.

Records relating to the formulation and execution 

of U.S. foreign policy and the administration and 

operations of State and its missions abroad. 

Equal Employment Opportunity 

Commission

Prevent and remedy unlawful employment 

discrimination and advance equal opportunity for 

all in the workplace. 

Agency reports, policy and regulatory 

documents, and appellate decisions.

Federal Deposit Insurance 

Corporation

Maintain stability and public confidence in the 

nation’s financial system by insuring deposits, 

examining and supervising financial institutions 

for safety and soundness and consumer 

protection, making large and complex financial 

institutions resolvable, and managing 

receiverships. 

Information related to assets obtained from failed 

financial institutions and claims data supporting 

the closure of failed financial institutions. 
Page 14 GAO-18-452T 

Agency Mission Examples of records maintained 

Federal Trade Commission Protect consumers by preventing 

anticompetitive, deceptive, and unfair business 

practices, enhancing informed consumer choice 

and public understanding of the competitive 

process, and accomplishing this without unduly 

burdening legitimate business activity.

Consumer complaints, settlement agreements, 

competition/antitrust, and privacy assessments 

about companies and company officials. 

National Aeronautics and Space 

Administration

Lead an innovative and sustainable program of 

exploration with commercial and international 

partners to enable human expansion across the 

solar system and bring new knowledge and 

opportunities back to earth. Support growth of 

the nation’s economy in space and aeronautics, 

increase understanding of the universe and the 

nation’s place in it, work with industry to improve 

America’s aerospace technologies, and advance 

American leadership.

Current and former contracts with the space 

centers, technical reports, and information 

related to space accidents. 

National Archives and Records 

Administration 

Provide public access to federal government 

records in its custody and control.

Agency operational records and archival records 

including census records, federal prison records, 

and immigration records. 

National Transportation Safety 

Board

Make transportation safer by conducting 

independent accident investigations, advocating 

safety improvements, and deciding pilots’ and 

mariners’ certificate appeals.

Administrative investigation reports, 

documentation related to accident investigations, 

and final case decisions of the agency. 

Office of Management and 

Budget

Assist the President in meeting his policy, 

budget, management, and regulatory objectives 

and to fulfill the agency’s statutory 

responsibilities. 

Information pertaining to matters issued, 

adopted, or promulgated by OMB, including the 

federal budget, OMB Circulars, and other 

policies and management documents.

Pension Benefit Guaranty 

Corporation

Enhance retirement security by preserving and 

encouraging the continuation of private pension 

plans and protecting the benefits of workers and 

retirees in traditional pension plans.

Opinion letters regarding the provisions of Title 

IV of the Employment Retirement Income 

Security Act and decisions of the appeal board 

that resolve specific disputes involving individual 

parties.

Tennessee Valley Authority Improve the quality of life in a seven-state region 

through the integrated management of the 

region’s resources.

Policy statements adopted by the agency and 

final opinions rendered in the adjudication of 

administrative cases.

U.S. African Development 

Foundation

Support African-led development that grows 

community enterprises by providing seed capital 

and technical support.

Recent and active project grants and foreign 

assistance investments for federal programs. 

U.S. Agency for International 

Development

Promote and demonstrate democratic values 

abroad, and advance a free, peaceful, and 

prosperous world.

Records that document the implementation of 

various capital assistance projects.

Source: GAO analysis of agency data. I GAO-18-452T

The 18 selected agencies reported that they received and processed 

more than 2 million FOIA requests from fiscal years 2012 through 2016. 

Over this 5-year period, the number of reported requests received 

fluctuated among the agencies. In this regard, some agencies saw a 
Page 15 GAO-18-452T 

continual rise in the number of requests, while other agencies 

experienced an increase or decrease from year to year. For example,

from fiscal years 2012 through 2014, DHS saw an increase in the number 

of requests received (from 190,589 to 291,242), but in fiscal year 2015, 

saw the number of requests received decrease to 281,138. Subsequently, 

in fiscal year 2016, the department experienced an increase to 325,780 

requests received.

In addition, from fiscal years 2012 through 2015, the reported numbers of 

requests processed by the selected agencies showed a relatively steady 

increase. However, in fiscal year 2016, the reported number of requests 

processed by these agencies declined. Figure 2 provides a comparison of 

the total number of requests received and processed in this 5-year period.

Figure 2: Freedom of Information Act Requests Received and Processed by 18 Selected Federal Agencies during Fiscal Years 

2012 – 2016
Page 16 GAO-18-452T 

Among other things, the FOIA Improvement Act of 2016 and the OPEN 

Government Act of 200721 calls for agencies to (1) update response 

letters, (2) implement tracking systems, (3) provide FOIA training, (4), 

provide required records online, (5) designate chief FOIA officers, and (6) 

update and publish timely and comprehensive regulations. As part of our 

ongoing work, we determined that the 18 selected agencies included in 

our review had implemented the majority of the six FOIA requirements

evaluated. Specifically,

• 18 agencies updated response letters, implemented tracking systems, 

and provided training,

• 15 agencies provided required records online, and

• 12 agencies designated chief FOIA officers.

However, only 5 of the agencies published and updated their FOIA 

regulations in a timely and comprehensive manner. Figure 3 summarizes 

the extent to which the 18 agencies implemented the selected FOIA 

requirements.

Beyond these selected agencies, Justice’s OIP and OMB also had taken 

steps to develop a government-wide FOIA request portal that is intended 

to allow the public to submit a request to any agency from a single 

website.

 21 FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538 (2016) (provisions 

codified at 5 U.S.C. § 552) and Pub. L. No. 110-175 (Dec. 31, 2007).

Selected Agencies 

Implemented the 

Majority of FOIA 

Requirements

Reviewed
Page 17 GAO-18-452T 

Figure 3: Extent to Which 18 Agencies Implemented Freedom of Information Act (FOIA) Requirements Reviewed
Page 18 GAO-18-452T 

The 2016 amendments to FOIA required agencies to include specific 

information in their responses when making their determinations on 

requests. Specifically, agencies must inform requesters that they may

• seek assistance from the FOIA Public Liaison,

• file an appeal to an adverse determination within a period of time that 

is not less than 90 days after the date of such adverse determination; 

and

• seek dispute resolution services from the FOIA Public Liaison of the 

agency or OGIS.

Among the 18 selected agencies, all had updated their FOIA response 

letters to include this required information.

Various FOIA amendments and guidance call for agencies to use 

automated systems to improve the processing and management of 

requests. In particular, the OPEN Government Act of 2007 amended 

FOIA to require that federal agencies establish a system to provide 

individualized tracking numbers for requests that will take longer than 10 

days to process and establish telephone or Internet service to allow 

requesters to track the status of their requests.22

Further, the President’s January 2009 Freedom of Information Act 

memorandum instructed agencies to use modern technology to inform 

citizens about what is known and done by their government.23 In addition, 

FOIA processing systems, like all automated information technology 

systems, are to comply with the requirements of Section 508 of the 

Rehabilitation Act (as amended). This act requires federal agencies to 

make their electronic information accessible to people with disabilities.

Each of the 18 selected agencies had implemented a system that 

provides capabilities for tracking requests received and processed, 

including an individualized number for tracking the status of a request. 

Specifically,

 22The Openness Promotes Effectiveness in our National (OPEN) Government Act of 

2007, Pub. L. No. 110-175 (Dec. 31, 2007).

23Presidential Memorandum, Freedom of Information Act (Jan. 21, 2009).

Selected Agencies Have 

Updated Their FOIA 

Response Letters

All Selected Agencies Had 

Implemented FOIA 

Tracking Systems
Page 19 GAO-18-452T 

• Ten agencies used commercial automated systems, (DHS, EEOC, 

FDIC, FTC, Justice, NTSB, NASA, Pension Benefit Guaranty 

Corporation, and USAID).

• Three agencies developed their own agency systems (State, DOI, and 

TVA).

• Five agencies used Microsoft Excel or Word to track requests 

(Administrative Conference of the United States, American Battle 

Monuments Commission, Broadcasting Board of Governors, OMB, 

and U.S. African Development Foundation).

Further, all of the agencies had established telephone or Internet services 

to assist requesters in tracking the status of requests; and they used 

modern technology (e.g., mobile applications) to inform citizens about 

FOIA. For example, the commercial systems allow requesters to submit a 

request and track the status of that request online. In addition, DHS 

developed a mobile application that allows FOIA requesters to submit 

requests and check the status of existing requests.

The 2016 FOIA amendments require agencies’ chief FOIA officers to offer 

training to agency staff regarding their responsibilities under FOIA. In 

addition, Justice’s OIP has advised every agency to make such training 

available to all of their FOIA staff at least once each year. The office has 

also encouraged agencies to take advantage of FOIA training 

opportunities available throughout the government.

The 18 selected agencies’ chief FOIA officers offered FOIA training 

opportunities to staff in fiscal years 2016 and 2017. For example:

• Eleven agencies provided training that gave an introduction and 

overview of FOIA (the American Battle Monuments Commission, 

EEOC, Justice, FDIC, FTC, NARA, Pension Benefit Guaranty 

Corporation, State, TVA, U.S. African Development Foundation, and 

USAID).

• Three agencies offered training for their agencies’ new online FOIA 

tracking and processing systems (DOI, NTSB, and Pension Benefit 

Guaranty Corporation).

• Three agencies provided training on responding to, handling, and 

processing FOIA requests (DHS, DOI, and State).

All Reviewed Agencies’

Chief FOIA Officers Have 

Offered FOIA Training
Page 20 GAO-18-452T 

• Three agencies offered training on understanding and applying the 

exemptions under FOIA (FDIC, FTC, and U.S. African Development 

Foundation).

• Two agencies offered training on the processing of costs and fees 

(NASA and TVA).

Memorandums from both the President and the Attorney General in 2009 

highlight the importance of online disclosure of information and further 

direct agencies to make information available without a specific FOIA 

request.24 Further, the 2016 FOIA amendments require online access to 

government information and require agencies to make information 

available to the public in electronic form for up to four categories:

• agency final opinions and orders,

• statements of policy,

• administrative staff manuals of interest to the public, and

• frequently requested records.

While all 18 agencies that we reviewed post records online, only 15 of 

them had posted all categories of information, as required by the FOIA 

amendments. Specifically, 7 agencies—the American Battle Monuments 

Commission, the Pension Benefit Guaranty Corporation, and EEOC, 

FDIC, FTC, DOJ, and State—had, as required, made records in all four 

categories publicly available online. In addition, 5 agencies that were only 

required to publish online records in three of the categories—the 

Administrative Conference of the United States, Broadcasting Board of 

Governors, DHS, OMB, and USAID— had done so.25 Further, 3 agencies 

that were only required to publish online records in two of the 

categories—U.S. African Development Foundation, NARA, and TVA—

had done so. The remaining 3 agencies—DOI, NASA, and NTSB—had 

posted records online for three of four required categories.

Regarding why the three agencies did not post all of their four required 

categories of online records, DOI officials stated that the agency does not 

 24Attorney General Memorandum, The Freedom of Information Act (Mar. 19, 2009) and 

Presidential Memorandum, Freedom of Information Act, (Jan. 21, 2009).

25Not all agencies offer final opinions, or have staff manuals that are of interest to the 

public. In these circumstances, we determined this requirement not to be applicable to 

them.

The Majority of Selected 

Agencies Post Required 

Records Online
Page 21 GAO-18-452T 

make publically available all FOIA records that have been requested 3 or 

more times, as it does not have the time to post all such records that have 

been requested. NASA officials explained that, while the agency issues 

final opinions, it does not post them online. As for NTSB, while its officials 

said they try to post information that is frequently requested, they do not 

post the information on a consistent basis

Making the four required categories of information available in electronic 

form is an important step in allowing the public to easily access to 

government documents. Until these agencies make all required 

categories of information available in electronic form, they cannot ensure 

that they are providing the required openness in government.

In 2005, the President issued an executive order that established the role 

of a Chief FOIA Officer.26 In 2007, amendments to FOIA required each 

agency to designate a chief FOIA officer who shall be a senior official at 

the Assistant Secretary or equivalent level.

Of the 18 selected agencies, 12 agencies have Chief FOIA Officers who 

are senior officials at the Assistant Secretary or equivalent level. The 

Assistant Secretary level is comparable to senior executive level positions 

at levels III, IV, and V.

27 Specifically,

• State has designated its Assistant Secretary of Administration, Bureau 

of Administration;

• DOI and NTSB had designated its Chief Information Officers;

• Administrative Conference of the United States, Broadcasting Board 

of Governors, FDIC, NARA, and U.S. African Development 

Foundation have designated their general counsels; and

• Justice, NASA, TVA, and USAID designated their Associate Attorney 

General, Associate Administrator for Communications, the Vice 

President for Communications, and the Assistant Administrator for the 

Bureau of Management, respectively.

 26Presidential Executive Order 13392, Improving Agency Disclosure of Information, 

(December 19, 2005).

275 U.S.C. § 5314-16.

Most Reviewed Agencies

Designated a Senior 

Official as a Chief FOIA 

Officer
Page 22 GAO-18-452T 

However, 6 agencies — American Battle Monuments Commission DHS, 

EEOC, Pension Benefit Guaranty Corporation, FTC, and OMB — do not 

have chief FOIA officers that are senior officials at the Assistant Secretary 

or equivalent level. According to officials from 5 of these agencies, the 

agencies all have chief FOIA officers and officials believed they had 

designated the appropriate officials. Officials at FTC acknowledged that 

the chief FOIA officer position is not designated at a level equivalent to an 

Assistant Secretary but a senior position within the agency. However, 

while there are chief FOIA officers at these agencies, until the chief FOIA 

officers are designated at the Assistant Secretary or equivalent level, they 

will lack assurance regarding the necessary authority to make decisions 

about agency practices, personnel, and funding.

FOIA requires federal agencies to publish regulations in the Federal 

Register that inform the public of their FOIA operations.28

Specifically, in 2016, FOIA was amended to require agencies to update 

their regulations regarding their FOIA operations. To assist agencies in 

meeting this requirement, OIP created a FOIA regulation template for 

agencies to use as they update their regulations. Among other things, 

OIP’s guidance encouraged agencies to:

• describe their dispute resolution processed,

• describe their administrative appeals process for response letters of 

denied requests,

• notify requesters that they have a minimum of 90 days to file an 

administrative appeal,

• inform requesters that the agency may charge fees for requests 

determined as “unusual” circumstances 29; and

• update the regulations in a timely manner (i.e., update regulations by 

180 days after the enactment of the 2016 FOIA amendment.)

 28Published by NARA, the Federal Register is the federal government’s official daily 

publication for rules, proposed rules, and notices of federal agencies and organization, as 

well as the executive orders and other presidential documents. 

29According to Justice guidance, an unusual circumstance is defined as, for example, an 

agency’s need to search for, collect, and appropriately examine a voluminous amount of 

separate and distinct records which are demanded in a single request. An unusual 

circumstances fee may be charged if the request is responded to within an additional ten 

days or exceeds 5000 pages and the requester is provided timely written notice of the 

unusual circumstance.

Most Reviewed Agencies 

Have Not Updated 

Regulations as Required 

to Inform the Public of 

Their FOIA Operations
Page 23 GAO-18-452T 

Five agencies in our review—DHS, DOI, FDIC, FTC, and USAID—

addressed all five requirements in updating their regulations. In addition, 

seven agencies addressed four of the five requirements: the 

Administrative Conference of the United States, EEOC, Justice, NARA, 

NTSB, Pension Benefit Guaranty Corporation, and TVA did not update 

their regulations in a timely manner.

Further, four agencies addressed three or less requirements (U.S. African 

Development Foundation, State, NASA, and Broadcasting Board of 

Governors) and two agencies (American Battle Monuments Commission 

and OMB) did not address any of the requirements. Figure 4 indicates the 

extent to which the 18 agencies had addressed the five selected 

requirements.
Page 24 GAO-18-452T 

Figure 4: Extent to Which Agencies’ Reviewed Addressed 2016 Freedom of Information Act Requirements and Office of 

Information Policy’s Guidance in Updating Their Regulations
Page 25 GAO-18-452T 

Agencies that did not address all five requirements provided several 

explanations as to why their regulations were not updated as required:

• American Battle Monuments Commission stated that while they 

updated their draft regulation in August 2017, it is currently 

unpublished due to internal reviews with the General Counsel in 

preparation for submission to the Federal Register. No new posting 

date has been established. American Battle Monuments Commission 

last updated its regulation in February 26, 2003.

• State officials noted that their regulation was updated two months 

prior to the new regulation requirements but did not provide a specific 

reason for not reissuing its regulation. As such, they explained that 

they have a working group reviewing their regulation for updates, with 

no timeline identified. State last updated its regulation on April 6, 

2016.

• NASA officials did not provide a reason for not updating its regulation 

as required. Officials did, however, state that its draft regulation is with 

the Office of General Counsel for review. NASA last updated its 

regulations on August 11, 2017.

• Broadcasting Board of Governors officials did not provide a reason for 

not updating its regulation as required. Officials did, however, note 

that the agency is in the process of updating its regulation and 

anticipates it will complete this update by the end of 2018. The

Broadcasting Board of Governors last updated its regulation on 

February 2, 2002.

• OMB officials did not provide a reason for not updating the agency’s 

regulation as required. Officials did, however, state that due to a 

change in leadership they do not have a time frame for updating their 

regulation. OMB last updated its regulation on May 27, 1998.

• The chief FOIA officer at the U.S. African Development Foundation 

stated that, while the agency had updated and submitted their 

regulation to be published in December 2016, they were unpublished 

due to an error that occurred with the acknowledgement needed to 

publish the regulation on the federal register. The regulation was 

subsequently published on February 3, 2017. The official further noted 

that when the agency responds to FOIA requests it has not charged a 

fee for unusual circumstances, and therefore they did not believe they 

had to disclose information regarding fees in its regulation.

Until these six agencies publish updated regulations that address the 

necessary requirements, as called for in FOIA and OIP guidance, they 

likely will be unable to provide the public with required regulatory and 
Page 26 GAO-18-452T 

procedural information to ensure transparency and accountability in the 

government.

The 2016 FOIA amendments required OMB to work with Justice to build a 

consolidated online FOIA request portal. This portal is intended to allow 

the public to submit a request to any agency from a single website and 

include other tools to improve the public’s access to the benefits of FOIA. 

Further, the act required OMB to establish standards for interoperability 

between the consolidated portal and agency FOIA systems. The 2016 

FOIA amendments did not provide a time to develop the portal and 

standards.

With OMB’s support, Justice developed an initial online portal. Justice’s 

OIP officials stated that they expect to update the portal to provide basic 

functionality that aligns with requirements of the act, including the ability 

to make a FOIA request, and technical processes for interoperability 

amongst agencies’ various FOIA systems. According to OIP officials, in 

partnership with OMB, OIP was able to identify dedicated funding source 

to operate and maintain the portal to ensure its success in the long term, 

with major agencies sharing in the costs to operate, maintain, and fund 

any future enhancements designed to improve FOIA processes. The first 

iteration of the National FOIA portal launched on Justice’s foia.gov 

website on March 8, 2018.

In our draft report, we determined that the 18 selected agencies in our 

review had FOIA request backlogs of varying sizes, ranging from no 

backlogged requests at some agencies to 45,000 or more requests at 

other agencies. Generally, the agencies with the largest backlogs had 

received the most requests. In an effort to aid agencies in reducing their 

backlogs, Justice’s OIP identified key practices that agencies can use. 

However, while the agencies reported using these practices and other 

methods, few of them managed to reduce their backlogs during the period 

from fiscal year 2012 through 2016. In particular, of the four agencies with 

the largest backlogs, only one—NARA—reduced its backlog. Agencies 

attributed their inability to decrease backlogs to the number and 

complexity of requests, among other factors. However, agencies also lack 

comprehensive plans to implement practices on an ongoing basis.

Justice and OMB Have 

Taken Steps to Develop an 

Online FOIA Request 

Portal

Agencies Have 

Methods to Reduce 

Backlogged 

Requests, but Their 

Efforts Have Shown 

Mixed Results
Page 27 GAO-18-452T 

The selected agencies in our review varied considerably in the size of 

their FOIA request backlogs. Specifically, from fiscal year 2012 through 

2016, of the 18 selected agencies

• 10 reported a backlog of 60 or fewer requests, and of these 10 

agencies, 6 reported having no backlog in at least 1 year.

• 4 agencies had backlog numbers between 61 and 1,000 per year; and

• 4 agencies had backlogs of over 1,000 requests per year.

The four agencies with backlogs of more than 1,000 requests for each 

year we examined were Justice, NARA, State and DHS. Table 2 shows 

the number requests and the number of backlogged request for the 18 

selected agencies during the 5-year period.

Table 3: Selected Agencies’ Freedom of Information Act Requests and Backlogs, Fiscal Years 2012-2016

Agency FY12 FY13 FY14 FY15 FY16

Department of Homeland 

Security

Requests 190,589 231,534 291,242 281,138 325,780

Backlog 28,553 51,761 103,480 35,374 46,788 

Department of State Requests 18,521 18,753 19,696 24,837 27961

Backlog 10,464 8,669 10,045 20,626 22,664

Department of Justice Requests 69,456 70,081 64,488 67,783 73103

Backlog 5,196 6,990 8,938 9,744 10,644

National Archives and 

Records Administration

Requests 13,345 12,243 22,237 22,555 49,966

Backlog 7,610 6,600 9,361 8,325 2,932 

Equal Employment 

Opportunity Commission

Requests 18,726 18,946 17,213 17,883 17,680

Backlog 131 190 195 451 792 

Department of the 

Interior

Requests 6,168 6,325 5,764 6,792 6,428

Backlog 449 423 578 571 677 

National Transportation 

Safety Board

Requests 294 466 589 566 471

Backlog 62 147 288 679 602 

U.S. Agency for 

International 

Development

Requests 267 372 373 330 377

Backlog 201 233 265 301 318 

Office of Management 

and Budget

Requests 191 222 152 198 154

Backlog 6 41 27 42 60 

Tennessee Valley 

Authority

Requests 188 162 165 198 212

Backlog 12 10 9 11 13 

Agencies Have FOIA 

Request Backlogs of 

Varying Sizes, and Most 

Increased from Fiscal Year 

2012 through 2016
Page 28 GAO-18-452T 

Agency FY12 FY13 FY14 FY15 FY16

Federal Trade 

Commission

Requests 1,415 1,447 1,440 1,531 1,260

Backlog 1 3 7 8 12

Broadcasting Board of 

Governors

Requests 40 58 138 45 54

Backlog 0 11 7 4 12

National Aeronautics and 

Space Administration

Requests 886 873 792 923 834

Backlog 22 11 11 10 8

Federal Deposit 

Insurance Corporation

Requests 931 732 647 630 465

Backlog 0 0 0 13 4

Pension Benefit 

Guaranty Corporation

Requests 5,314 5,721 2,094 2,278 3,713

Backlog 0 8 0 0 0

American Battle 

Monuments Commission

Requests 9 3 9 5 17

Backlog 1 1 0 0 0

Administrative 

Conference of the United 

States

Requests 15 19 17 26 25

Backlog 0 0 0 0 0

U.S. African 

Development Foundation

Requests 4 4 14 2 4

Backlog 0 0 0 0 0

Source: GAO analysis of agency data. | GAO-18-452T

Over the 5-year period, 14 of the 18 selected agencies experienced an 

increase in their backlogs in at least 1 year. By contrast, 2 agencies 

(Administrative Conference of the United States and the U.S. African 

Development Foundation) reported no backlogs, and 3 agencies 

(American Battle Monument Commission, NASA and NARA) reported 

reducing their backlogs. Further, of the four agencies with the largest 

backlogs (DHS, State, Justice, and NARA) only NARA reported a backlog 

lower in fiscal year 2016 than in fiscal year 2012. Figure 5 shows the 

trends for the four agencies with the largest backlogs, compared with the 

rest of the 18 agencies.
Page 29 GAO-18-452T 

Figure 5: Number of Backlogged FOIA Requests for Selected Agencies, Fiscal Years 2012-2016

Note: The 14 agencies included in the “other” category are Equal Employment Opportunity 

Commission, Department of the Interior, National Transportation Safety Board, U.S. Agency for 

International Development, Office of Management and Budget, Tennessee Valley Authority, Federal 

Trade Commission, Broadcast Board of Governors, National Aeronautics and Space Administration, 

Federal Deposit Insurance Corporation, Pension Benefit Guaranty Corporation, American Battle 

Monuments Commission, Administrative Conference of the United States, and U. S. African 

Development Foundation.

In most cases, agencies with small or no backlogs (60 or fewer) also 

received relatively few requests. For example, the Administrative 

Conference of the United States and the U.S. African Development 

Foundation reported no backlogged requests during any year but also 

received fewer than 30 FOIA requests a year. The American Battle 

Monuments Commission also received fewer than 30 requests a year and 

only reported 1 backlogged request per year in 2 of the 5 years 

examined. However, the Pension Benefit Guaranty Corporation and FDIC 
Page 30 GAO-18-452T 

received thousands of requests over the 5-year period, but maintained 

zero backlogs in a majority of the years examined. PBGC received a total 

of 19,120 requests during the 5-year period and only reported a backlog 

of 8 requests during one year, fiscal year 2013. FDIC received a total of 

3,405 requests during the 5-year period and reported a backlog of 13 

requests in fiscal year 2015 and 4 in fiscal year 2016.

The four agencies with backlogs of 1,000 or more (Justice, NARA, State, 

and DHS) received significantly more requests each year. For example, 

NARA received between about 12,000 and 50,000 requests each year, 

while DHS received from about 190,000 to 325,000 requests. In addition, 

the number of requests NARA received in fiscal year 2016 was more than 

double the number received in fiscal year 2012. DHS received the most 

requests of any agency—a total of 1,320,283 FOIA requests over the 5-

year period.

The Attorney General’s March 2009 memorandum called on agency chief 

FOIA officers to review all aspects of their agencies’ FOIA administration 

and report to Justice on steps that have been taken to improve FOIA 

operations and disclosure. Subsequent Justice guidance required 

agencies are to include in their chief FOIA officer reports information on 

their FOIA request backlogs, including whether the agency experienced a 

backlog of requests; whether that backlog decreased from the previous 

year; and, if not, reasons the backlog did not decrease. In addition, 

agencies that had more than 1,000 backlogged requests in a given year 

were required to describe their plans to reduce their backlogs. Beginning 

in fiscal year 2015, these agencies were to describe how they 

implemented their plans from the previous year and whether that resulted 

in a backlog reduction.

In addition, Justice’s OIP identified best practices for reducing FOIA 

backlogs. The office held a best practices workshop on reducing backlogs 

and improving timeliness. The office then issued guidance in August 2014 

which highlighted key practices to improve the quality of a FOIA program. 

OIP identified the following methods in its best practices guidance.

• Utilize resources effectively. Agencies should allocate their 

resources effectively by using multi-track processing, making use of 

available technology, and shifting priorities and staff assignments to 

address needs and effectively manage workloads.

Agencies Identified a 

Variety of Methods to 

Reduce Backlogs, but Few 

Saw Reductions
Page 31 GAO-18-452T 

• Routinely review metrics. Agencies should regularly review their 

FOIA data and processes to identify challenges or barriers. 

Additionally, agencies should identify trends to effectively allocate 

resources, set goals for staff, and ensure needs are addressed.

• Emphasize staff training. Agencies should ensure FOIA staff are 

properly trained so they can process requests more effectively and 

with more autonomy. Training and engagement of staff can also 

solidify the importance of the FOIA office’s mission.

• Obtain leadership support. Agencies should ensure that senior 

management is involved in and supports the FOIA function in order to 

increase awareness and accountability, as well as make it easier to 

obtain necessary resources or personnel.

Agencies identified a variety of methods that they used to address their 

backlogs. These included both the practices identified by Justice, as well 

as additional methods.

Ten agencies maintained relatively small backlogs of 60 or fewer 

requests and were thus not required to develop plans for reducing 

backlogs. However, 2 of these 10 agencies, who both received significant 

numbers of requests, described various methods used to maintain a small 

backlog:

• PBGC officials credits its success to training, not only for FOIA staff, 

but all Incoming personnel, while also awarding staff for going above 

and beyond in facilitating FOIA processing. Pension Benefit Guaranty 

Corporation has incorporated all the best practices identified by OIP, 

including senior leadership involvement that supports FOIA initiatives 

and program goals, routine review of metrics to optimize workflows, 

effective utilization of resources and staff training.

• According to FDIC officials, its overall low backlog numbers are 

attributed to a trained and experienced FOIA staff, senior 

management involvement, and coordination among FDIC divisions. 

However, FDIC stated the reason for the increase in backlogs in fiscal 

year 2015 was due to increased complexity of requests.

The 4 agencies with backlogs greater than 60 but fewer than 1,000 

(EEOC, DOI, NTSB, and USAID) reported using various methods to 

reduce their backlogs. However, all 4 showed an increase over the 5-year 

period.

• EEOC officials stated that it had adopted practices recommended by 

OIP such as multi-track processing, reviewing workloads to ensure 
Page 32 GAO-18-452T 

sufficient staff, and using temporary assignments to address needs. 

However, it has seen a large increase in its backlog numbers, going 

from 131 in fiscal year 2012 to 792 in fiscal year 2016. EEOC 

attributed the rise in backlogs to an increase in requests received, 

loss of staff, and the complex and voluminous nature of requests.

• DOI, according to agency officials, has also tried to incorporate 

reduction methods and best practices, including proactively releasing 

information that may be of interest to the public, thus avoiding the 

need for a FOIA request; enhanced training for its new online FOIA 

tracking and processing system; improved inter-office collaboration; 

monthly reports on backlogs and weekly charts on incoming requests 

to heighten awareness among leadership; and monitoring trends. Yet, 

DOI has seen an increase in its backlog, from 449 in fiscal year 2012 

to 677 in fiscal year 2016, an increase of 51 percent. DOI attributed 

the increase to loss of FOIA personnel, increase in the complexity of 

requests, increase in FOIA-related litigation, increase in incoming 

requests, and staff having additional duties.

• Officials at NTSB stated that it utilized contractors and temporary staff 

assignments to augment staffing and address backlogs. Despite the 

effort, NTSB saw a large increase in backlogs, from 62 in fiscal year 

2012 to 602 in fiscal year 2016. Officials stated that reason for the 

increase was due to increased complexity of requests, including 

requests for “any and all” documentation related to a specific subject, 

often involving hundreds to thousands of pages per request.

• According to USAID officials, the agency conducts and reviews 

inventories of its backlog and requests to remove duplicates and 

closed cases, group and classify requests by necessary actions and 

responsive offices, and initiate immediate action. In addition, USAID 

seeks to identify tools and solutions to streamline records for review 

and processing. However, its backlog numbers have continually 

increased, from 201 in fiscal year 2012 to 318 in fiscal year 2016. 

USAID attributes that increase to increase in the number of requests, 

loss of FOIA staff, increased complexity and volume of requests, 

competing priorities, and world events that may drive surges in 

requests.

Of the four agencies with the largest backlogs, all reported taking steps 

that in some cases included best practices identified by OIP; however, 

only NARA successfully reduced its backlog by the end of the 5-year 

period.

• Justice made noted that it efforts to reduce its backlog by 

incorporating best practices. Specifically, OIP worked with 
Page 33 GAO-18-452T 

components within Justice through the Component Improvement 

Initiative to identify causes contributing to a backlog and assist 

components in finding efficiencies and overcoming challenges. The 

Chief FOIA Officer continued to provide top-level support to reduction 

efforts by convening the department’s FOIA Council to manage 

overall FOIA administration. In addition, many of the components 

created their own reduction plans, which included hiring staff, utilizing 

technology, and providing more training, requester outreach, and 

multitrack processing.

However, despite these efforts, the number of backlogs steadily 

increased during the 5-year period, from 5,196 in fiscal year 2012 to 

10,644 in fiscal year 2016, an overall increase of 105 percent. Justice 

attributes the increase in backlogs to several challenges, including an 

increase of incoming requests and an increase in the complexity of 

those requests. Other challenges that Justice noted were staff 

shortages and turnover, reorganization of personnel, time to train 

incoming staff, and the ability to fill positions previously held by highly 

qualified professionals.

• NARA officials stated that one key step NARA took was to make 

corrections in its Performance Measurement and Reporting System. 

They noted that this system previously comingled backlogged 

requests with the number of pending FOIA requests, skewing the 

backlog numbers higher. The improvements included better 

accounting for pending and backlogged cases, distinguishing between 

simple and complex requests, and no longer counting as open cases 

that were closed within 20 days, but not until the beginning of the 

following fiscal year. In addition, officials also stated that the FOIA 

program offices have been successful at working with requesters to 

narrow the scope of requests.

NARA also stated that it was conducting an analysis of FOIA across 

the agency to identify any barriers in the process. Officials also 

identified other methods, including using multi-track processing, 

shifting priorities to address needs, improved communication with 

agencies, proactive disclosures, and the use of mediation services.

NARA has shown significant progress in reducing its backlog. In fiscal 

year 2012 it had a backlog of 7,610 requests, which spiked to 9,361 in 

fiscal year 14. However, by fiscal year 2016 the number of 

backlogged requests had dropped to 2,932 despite an more than

doubling of requests received for that fiscal year. However, NARA did 
Page 34 GAO-18-452T 

note challenges to reducing its backlog numbers, namely, the 

increase in the number of requests received.

• State developed and implemented a plan to reduce its backlog in 

fiscal year 2016. The plan incorporated two best practices by focused 

on identifying the extent of the backlog problem and developing ways 

to address the backlog with available resources. According to State 

officials, effort was dedicated to improve how FOIA data was 

organized and reported. Expedited and litigation cases were top 

priorities, whereas in other cases a first in first out method was 

employed.

Even with these efforts, however, State experienced a 117 percent 

increase in its backlog over the 5-year period. State’s backlog doubled 

from 10,045 in fiscal year 2014 to 22,664 in fiscal year 2016. Among 

the challenges to managing its backlog, State reported an increase in 

incoming requests, a high number of litigation cases, and competing 

priorities. Specifically, the number of incoming requests for State 

increase by 51 percent during the 5-year period. State has also 

reported that it has allocated 80 percent of its FOIA resources to meet 

court-ordered productions associated with litigation cases, resulting in 

fewer staff to work on processing routine requests. This included, 

among other efforts, a significant allocation of resources in fiscal year 

2015 to meet court-imposed deadlines to process emails associated 

with the former Secretary of State, resulting in a surge of backlogs.

In 2017 State began an initiative to actively address its backlogs. The 

Secretary of State issued an agency-wide memorandum stating the 

department’s renewed efforts by committing more resources and 

workforce to backlog reduction. The memo states new processes are 

to be implemented for both the short and long-term, and the FOIA 

office has plans to work with the various bureaus to outline the tasks, 

resources, and workforce necessary to ensure success and 

compliance. With renewed leadership support, State has reported 

significant progress in its backlog reduction efforts.

• DHS, in its chief FOIA officer reports, reported that it implemented 

several plans to reduce backlogs. The DHS Privacy office, which is 

responsible for oversight of the department’s FOIA program, worked 

with components to help eliminate the backlog. The Privacy Office 

sent monthly emails to component FOIA officers on FOIA backlog 

statistics, convened management meetings, conducted oversight, and 

reviewed workloads. Leadership met weekly to discuss the oldest 
Page 35 GAO-18-452T 

pending requests, appeals, and consultations, and determined 

needed steps to process those requests.

In addition, several other DHS components implemented actions to 

reduce backlogs. Customs and Border Protection hired and trained 

additional staff, encouraged requesters to file requests online, 

established productivity goals, updated guidance, and utilized better 

technology. U.S. Citizenship and Immigration Services, National 

Protection and Programs Directorate, and Immigration and Customs 

Enforcement increased staffing or developed methods to better 

forecast future workloads ensure adequate staffing. Immigration and 

Customs Enforcement also implemented a commercial off-the-shelf 

web application, awarded a multi-million dollar contract for backlog 

reduction, and detailed employees from various other offices to assist 

in the backlog reduction effort.

Due to efforts by the Privacy Office and other components, the 

backlog dropped 66 percent in fiscal year 2015, decreasing to 35,374. 

Yet, despite the continued efforts in fiscal year 2016, the backlog 

numbers increased again, to 46,788. DHS attributes the increases in 

backlogs to several factors, including an increase in the number of 

requests received, increased complexity and volume of responsive 

records for those requests, loss of staff and active litigation with 

demanding production schedules.

One reason the eight agencies with significant backlogs may be 

struggling to consistently reduce their backlogs is that they lack 

documented, comprehensive plans that would provide a more reliable, 

sustainable approach to addressing backlogs. In particular, they do not 

have documented plans that describe how they will implement best 

practices for reducing backlogs over time, including specifying how they 

will use metrics to assess the effectiveness of their backlog reduction 

efforts and ensure that senior leadership supports backlog reduction 

efforts, among other best practices identified by OIP.

While agencies with backlogs of 1,000 or more are required to describe 

backlog reduction efforts in their chief FOIA officer reports, these consist 

of a high-level narrative and do not include a specific discussion of how 

the agencies will implement best practices over time to reduce their 

backlog. In addition, agencies with backlogs of fewer than 1,000 requests 

are not required to report on backlog reduction efforts; however, the 

selected agencies in our review with backlogs in the hundreds still 

experienced an increase over the 5-year period.
Page 36 GAO-18-452T 

Without a more consistent approach, agencies will continue to struggle to 

reduce their backlogs to a manageable level, particularly as the number 

and complexity of requests increase over time. As a result, their FOIA 

processing may not respond effectively to the needs of requesters and 

the public.

FOIA requires agencies report annually to Justice on their use of statutory 

(b)(3) exemptions. This includes specifying which statutes they relied on 

to exempt information from disclosure and the number of times they did 

so.30 To assist agencies in asserting and accounting for their use of these 

statutes, Justice instructs agencies to consult a running list of all the 

statutes that have been found to qualify as proper (b)(3) statutes by the 

courts.31

However, agencies may also use a statute not included in the Justice list, 

because many statutes that appear to meet the requirements of (b)(3) 

have not been identified by a court as qualifying statutes. If the agency 

uses a (b)(3) statute that is not identified in the qualifying list, Justice 

guidance instructs the agency to include information about that statute in 

its annual report submission. Justice reviews the statute and provides 

advice to the agency, but does not make a determination on the 

appropriateness of using that statute under the (b)(3) exemption.

Based on data agencies reported to Justice,32 during fiscal years 2010 to 

2016, agencies claimed 237 statutes as the basis for withholding 

information. Of these statutes, 75 were included on Justice’s list of 

qualifying statutes under the (b)(3) exemption. Further, we identified 140

additional statutes that were not identified in our 237 statutes claimed by 

agencies during fiscal years 2010 to 2016, but have similar provisions to 

other (b)(3) statutes authorizing an agency to withhold information from 

the public.

 30 5 U.S.C. § 552(e)(1)(B)(ii).

31This periodically updated list currently contains 78 statutes.

32There were 117 agencies subject to FOIA for which Justice provided FOIA exemption 

related data through FOIA.gov for fiscal years 2010 to 2016. However, the number of 

agencies reporting to Justice varies year to year because, for example, agencies ceased 

to exist during our review period. As of fiscal year 2017, there were 116 agencies subject 

to FOIA that report FOIA exemption related data to Justice because, for example, the 

Recovery Accountability and Transparency Board ceased to exist in September of 2015.

Various Types of 

Statutory Exemptions 

Exist and Many Have 

Been Used by 

Agencies
Page 37 GAO-18-452T 

We found that the 237 statutes cited as the basis for (b)(3) exemptions 

during the period from fiscal year 2010 to 2016 to fell into eight general 

categories of information. These categories were (1) personally 

identifying information, (2) national security, (3) commercial, (4) law 

enforcement and investigations, (5) internal agency, (6) financial 

regulation, (7) international affairs, and (8) environmental. Figure 6 

identifies the eight categories and the number of agency-claimed (b)(3) 

statutes in each of the categories.

Figure 6: General Categories of (b)(3) Exemption Statutes Used by Agencies Subject to the Freedom of Information Act during 

Fiscal Years 2010 to 2016
Page 38 GAO-18-452T 

Of the 237 (b)(3) statutes cited by agencies, the majority—178—fell into 

four of the eight categories:

• Forty-nine of these statutes related to withholding personally 

identifiable information including, for example, a statute related to 

withholding death certificate information provided to the Social 

Security Administration.33

• Forty-five statutes related to the national security category. For 

example, one statute exempted files of foreign intelligence or 

counterintelligence operations of the National Security Agency.34

• Forty-two statutes were in the law enforcement and investigations 

category, including a statute that exempts from disclosure information 

provided to Justice pursuant to civil investigative demands pertaining 

to antitrust investigations.35

• Forty-two statutes fell into the commercial category. For example, one 

statute in this category related to withholding trade secrets and other 

confidential information related to consumer product safety.36

The remaining 59 statutes were in four categories: internal agency 

functions and practices, financial regulation, international affairs, and 

environmental. The environmental category contained the fewest number 

of statutes and included, for example, a statute related to withholding 

certain air pollution analysis information.37

As required by FOIA, agencies also reported the number of times they 

used each (b)(3) statute.38 In this regard, 33 FOIA-reporting agencies 

indicated that they had used 10 of the 237 (b)(3) statutes more than 

 3342 U.S.C. § 405(r)(6).

3450 U.S.C. § 3144.

3515 U.S.C. § 1314(g).

3615 U.S.C. § 2055.

3742 U.S.C. § 7412(r)(7)(H)(iii).

38As noted previously, when accounting for the use of (b)(3) exemptions in a fiscal year, 

Justice’s guidance states that for each request, the agency should report all (b)(3) 

exemption statutes relied upon in a request, but count each statute only once per request, 

regardless of the number of times it was applied in a single request. Our analysis was 

limited to numbers reported to Justice and obtained on FOIA.gov. As agencies may use a 

single statute multiple times in a request, the number of times an agency used any 

particular statute during our review period we reviewed is likely to be greater than what 

agencies report to Justice.
Page 39 GAO-18-452T 

200,000 times.39 Of these 10 most-commonly used statutes, the single 

most-used statute (8 U.S.C § 1202(f)) related to withholding records 

pertaining to the issuance or refusal of visas to enter the United States. It 

was used by 4 agencies over 58,000 times.40

Further, of the 10 most-commonly used statutes, the statute used by the 

greatest number of agencies (26 U.S.C § 6103) related to the withholding 

of certain tax return information; it was used by 24 FOIA-reporting 

agencies about 30,000 times.41 By contrast, some statutes were only 

used by a single agency. Specifically, the Department of Veterans Affairs 

used a statute related to withholding certain confidential veteran medical 

records (38 U.S.C. § 7332) more than 16,000 times. Similarly, EEOC 

used a statute related to employment discrimination on the basis of 

disability (42 U.S.C. § 12117) more than 10,000 times.

Table 4 shows the 10 most-used statutes under the (b)(3) exemption, the 

agency that used each one most frequently, and the number of times they 

were used by that agency for the period covering fiscal years 2010 

through 2016.

 39These agencies were: Departments of Treasury, Homeland Security, Justice, Veterans 

Affairs, Energy, Defense, Transportation, Education, State, Agriculture, Labor, Housing 

and Urban Development, Interior, and Commerce, the Social Security and Small Business 

Administrations, the Federal Maritime, Securities and Exchange, Occupational Safety and 

Health Review, Equal Employment Opportunity, and Federal Communications 

Commissions, the Overseas Private Investment and Pension Benefit Guaranty 

Corporations, Offices of Personnel Management and Director of National Intelligence, the 

Federal Housing Finance, Central Intelligence Agency, and U.S. Trade and Development 

Agencies, U.S. Agency for International Development, National Archives and Records 

Administration, United States Postal Service, Council of the Inspectors General on 

Integrity and Efficiency, and the Privacy and Civil Liberties Oversight Board.

40The four agencies that cited 8 U.S.C § 1202(f) were State, DHS, Justice, and NARA.

41These agencies were: Departments of Treasury, Homeland Security, Justice, Veterans 

Affairs, Energy, Defense, Transportation, Education, State, Agriculture, Interior, and 

Commerce, the Social Security and Small Business Administrations, the Federal Maritime, 

Securities and Exchange and the Occupational Safety and Health Review Commissions, 

the Overseas Private Investment and Pension Benefit Guaranty Corporations, the Federal 

Housing Finance and U.S. Trade and Development Agencies, the U.S. Agency for 

International Development, National Archives and Records Administration, and the United 

States Postal Service.
Page 40 GAO-18-452T 

Table 4: Ten Most-Used Freedom of Information Act (b)(3) Exemption Statutes, the Agencies That Used Them Most, and the 

Number of Times Agencies Reporting Using Them for Fiscal Years 2010 through 2016

(b)(3) Statute Type of information withheld Total 

number of 

reported 

uses 

Agency using the 

statute the most

Agency 

reported 

Number of 

times used 

8 U.S.C. § 1202(f) Records pertaining to the issuance or refusal 

of visas to enter the United States.

58,419 Department of State 58,411

26 U.S.C. § 6103 Tax return information. 30,160 Department of Treasury 17,250

49 U.S.C. § 114(r) Air transportation security information. 26,344 Department of 

Homeland Security 

(DHS)

26,341

42 U.S.C. § 2000e-5(b) Equal employment opportunity enforcement 

information.

20,167 Equal Employment 

Opportunity 

Commission (EEOC)

20,157

42 U.S.C. § 2000e-8(e) Equal employment opportunity investigation 

information.

20,167 EEOC 20,157

50 U.S.C. § 3507 Information related to sources and methods of 

intelligence activities of the Office of the 

Director of National Intelligence and the 

Central Intelligence Agency.

19,535 Central Intelligence 

Agency

13,637

38 U.S.C. § 7332 Certain confidential veteran’s medical records. 16,896 Department of Veterans 

Affairs

16,896

42 U.S.C. § 12117 Information relating to employment 

discrimination on the basis of disability.

10,708 EEOC 10,708

50 U.S.C. § 3605 Information related to sources and methods of 

intelligence activities and personnel of the 

National Security Agency.

10,528 Department of Defense 10,459

26 U.S.C. § 6105 Information about tax agreements with foreign 

governments.

9,291 DHS 8,240

Source: GAO analysis of FOIA.gov (b)(3) exemption statutes claimed by agencies subject to the Freedom of Information Act. | GAO-18-452T

The OPEN FOIA Act of 2009 amended FOIA to require that any federal 

statute enacted subsequently must specifically cite paragraph (b)(3) of 

FOIA to qualify as a (b)(3) exemption statute.42 Prior to 2009, a federal 

statute qualified as a statutory (b)(3) exemption if it (1) required that the 

matters be withheld from the public in such a manner as to leave no 

 42Current Justice guidance states, “With the passage of the Open FOIA Act, all statutes 

enacted after 2009 that are intended by Congress to operate as Exemption 3 statutes 

must specifically cite to the Exemption.” Department of Justice Guide to the Freedom of 

Information Act: Exemption 3, p. 54 (Aug 13, 2015).

Most Statutes Enacted 

after 2009 That Were 

Used by Agencies Did Not 

Specifically Cite the (b)(3) 

Exemption
Page 41 GAO-18-452T 

discretion on the issue, or (2) established particular criteria for withholding 

or refers to particular types of matters to be withheld.

In response to the amendment, in 2010, Justice released guidance to 

agencies stating that any statute enacted after 2009 must specifically cite 

to the (b)(3) exemption to qualify as a withholding statute. Further, the 

guidance encouraged agencies to contact Justice with questions 

regarding the implementation of the amendment.

Even with this guidance, we found that a majority of agency-claimed 

statutes during fiscal years 2010 through 2016 did not specifically cite the 

(b)(3) exemption. Specifically, of the 237 (b)(3) statutes claimed by 

agencies, 103 were enacted or amended after 2009 and, thus, were 

subject to the requirement of the OPEN FOIA Act.43 Of those 103 

statutes, 86 lacked the required statutory text that cited exemption (b)(3) 

of FOIA.

Figure 7 shows the number of agency-claimed statutes subject to the 

OPEN FOIA Act of 2009 requirement that did not cite the (b)(3) 

exemption.

 43Although the requirements of FOIA specify those (b)(3) exemption statutes that are 

enacted after the date of enactment of the OPEN FOIA Act of 2009, our review included 

amendments of (b)(3) exemptions statutes as it provided evidence of congressional 

reconsideration of the provisions of that statutes and any attention given to the 

requirements set forth in 5 U.S.C § 552(b)(3)(B).
Page 42 GAO-18-452T 

Figure 7: Number of (b)(3) Exemption Statutes Claimed during Fiscal Years 2010 through 2016 That Included a Reference to 

Exemption 3 of the Freedom of Information Act

Agencies are using these statutes as the basis for withholding information 

when responding to a FOIA request. This is despite these statutes not 

having a reference to the (b)(3) exemption as required by the 2009 FOIA 

amendments.

In our report, being issued today, we found that, according to the 

available information and Justice and OSC officials, since fiscal year 

2008, no court orders have been issued that have required OSC to initiate 

a proceeding to determine whether disciplinary action should be taken 

against agency FOIA personnel. Specifically, officials in Justice’s Office of 

Information Policy stated that there have been no lawsuits filed by a FOIA 

requester that have led the courts to conduct all three requisite actions 

needed for Justice to refer a court case to OSC.

Justice’s litigation and compliance reports identified six court cases 

(between calendar years 2013 and 2016) in which the requesters sought 

a referral from the courts in an attempt to have OSC initiate an 

investigation. However, in all six cases, the courts denied those requests, 

finding that each case did not result in the courts taking the three actions 

necessary to involve OSC.

Thus, given these circumstances, Justice has not referred any court 

orders to OSC to initiate a proceeding to determine whether disciplinary 

action should be taken against agency FOIA personnel. For its part, OSC 

officials confirmed that the office has neither received, nor acted on, any 

Federal Court 

Decisions Have Not 

Required the Office of 

Special Counsel to 

Initiate Disciplinary 

Actions for the 

Improper Withholding 

of Records
Page 43 GAO-18-452T 

such referrals from Justice. As such, OSC has not had cause to initiate 

disciplinary actions for the improper withholding of FOIA records.

In summary, the 18 agencies we selected for review fully implemented 

half of the six FOIA requirements reviewed and the vast majority of 

agencies implemented two additional requirements. However, 5 agencies 

published and updated their FOIA regulations in a timely and 

comprehensive manner. Fully implementing FOIA requirements will better 

position agencies to provide the public with necessary access to 

government records and ensure openness in government.

The selected agencies in our review varied considerably in the size of 

their backlogs. While 10 reported a backlog of 60 or fewer requests, 4 

had backlogs of over 1,000 per year. Agencies identified a variety of 

methods that they used to address their backlogs, including practices 

identified by Justice, as well as additional methods. However, the 

selected agencies varied in the success achieved for reducing their 

backlogs. This was due, in part, to a lack of plan that describes how the 

agencies will implement best practices for reducing backlogs over time. 

Until agencies develop plans to reduce backlogs, they will be limited in 

their ability to respond effectively to the needs of requesters and the 

public.

Accordingly, our draft report contains 23 planned recommendations to 

selected agencies. These recommendations address posting records 

online, designating chief FOIA officers, updating regulations consistent 

with requirements, and developing plans to reduce backlogs. 

Implementation of our recommendations should better position these 

agencies to address FOIA requirements and ensure the public is provided 

with access to government information.

Chairman Grassley, Ranking Member Feinstein, and Members of the 

Committee, this completes my prepared statement. I would be pleased to 

respond to any questions that you may have at this time.
Page 44 GAO-18-452T 

If you have any questions on matters discussed in this testimony, please 

contact David A. Powner at (202) 512-9286 or at pownerd@gao.gov. 

Individuals who made key contributions to this testimony are Anjalique 

Lawrence (assistant director), Lori Martinez (analyst in charge), Gerard 

Aflague, David Blanding, Christopher Businsky, Rebecca Eyler, James 

Andrew Howard, Carlo Mozo, David Plocher, and Sukhjoot Singh.

GAO Contact and 

Staff 

Acknowledgments

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