Freedom of Information Act: Agencies Are Making Progress in Reducing Backlog, but Additional Guidance Is Needed
Published: 2008-03-14T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Under the Freedom of Information Act (FOIA), federal agencies must generally provide access to their information, enabling the public to learn about government operations and decisions. To help ensure proper implementation, the act requires that agencies report annually to the Attorney General on their processing of FOIA requests. For fiscal year 2006, agencies were also to report on their progress in implementing plans to improve FOIA operations, as directed by a December 2005 Executive Order. A major goal of the order was reducing backlogs of overdue FOIA requests (the statute requires an agency to respond to requests within 20 or, in some cases, 30 working days with a determination on whether it will provide records). For this study, GAO was asked, among other things, to determine trends in FOIA processing and agencies' progress in addressing backlogs of overdue FOIA requests since implementing their improvement plans. To do so, GAO analyzed 21 agencies' annual reports and additional statistics.
section_title: What GAO Found
paragraphs: Based on data reported by major agencies in annual FOIA reports from fiscal years 2002 to 2006, the numbers of FOIA requests received and processed continue to rise, but the rate of increase has flattened in recent years. The number of pending requests carried over from year to year has also increased, although the rate of increase has declined. The increase in pending requests is primarily due to increases in requests directed to the Department of Homeland Security (DHS). In particular, increases have occurred at DHS's Citizenship and Immigration Services, which accounted for about 89 percent of DHS's total pending requests. However, the rate of increase is slightly less than it was in fiscal year 2005. Following the emphasis on backlog reduction in Executive Order 13392 and agency improvement plans, many agencies have shown progress in decreasing their backlogs of overdue requests as of September 2007. In response to GAO's request, 16 agencies provided information on their recent progress in addressing backlogs; results showed that 9 achieved decreases, 5 experienced increases, and 2 had no material change. Notably, according to this information, DHS was able to decrease its backlog of overdue requests by 29,972, or about 29 percent. However, the statistics provided by the 16 agencies varied widely, representing both overdue cases and all pending cases, as well as varying time frames. Further, 3 of 21 agencies reviewed were unable to provide statistics supporting their backlog reduction efforts, and 1 provided statistics by component, which could not be aggregated to provide an agencywide result. (The remaining agency reported no backlog before or after implementing its plan.) Tracking and reporting numbers of overdue cases is not a requirement of the annual FOIA reports or of the Executive Order. Although both the Executive Order and Justice's implementing guidance put a major emphasis on backlog reduction, agencies were given flexibility in developing goals and metrics that they considered most appropriate in light of their current FOIA operations and individual circumstances. As a result, agencies' goals and metrics vary widely, and progress could not be assessed against a common metric. The progress that many agencies made in reducing backlog suggests that the development and implementation of the FOIA improvement plans have had a positive effect. However, in the absence of consistent statistics on overdue cases, it is not possible to make a full assessment of governmentwide progress in this area. Justice's most recent guidance directs agencies to set goals for reducing backlogs of overdue requests in future fiscal years, which could lead to the development of a consistent metric; however, it does not direct agencies to monitor and report overdue requests or to develop plans for meeting the new goals. Without such planning and tracking, agencies may be challenged to achieve the reductions envisioned.

section_title: Letter
paragraphs: The Freedom of Information Act (FOIA) establishes that federal agencies  must generally provide the public with access to government information,  thus enabling them to learn about government operations and decisions.  Specific requests by the public for information through the act have led to  the disclosure of waste, fraud, abuse, and wrongdoing in the government,  as well as the identification of unsafe consumer products, harmful drugs,  and serious health hazards.
To help ensure appropriate implementation, the act requires that agencies  provide annual reports on their FOIA operations to the Attorney General;  these reports include information as specified in the act, such as how  many requests were received and processed in the previous fiscal year,  how many requests were pending at the end of the fiscal year, and the  median times that agencies or their components took to process requests.  Since 2001, we have provided the Congress with periodic analyses of the  contents of these annual reports.
In December 2005, the President issued an Executive Order aimed at  improving agencies’ disclosure of information consistent with FOIA. A  major focus of the order was the reduction or elimination of “backlog”:  requests for records that have not been responded to within the statutory  time limit—generally 20 working days. (For clarity, we refer to this as  “backlog of overdue requests” or “overdue requests” to distinguish it from  pending requests, as reported in the annual reports; pending requests are  all open requests, whether or not they have been responded to within the  time limits.) Among other things, this order required each agency to  review its FOIA operations and develop improvement plans; by June 14,  2006, each agency was to submit a report to the Attorney General and the  Director of the Office of Management and Budget (OMB) summarizing the  results of the agency’s review and including a copy of its improvement  plan. These plans were to include specific outcome-oriented goals and  timetables, by which the agency head is to evaluate the agency’s success in  implementing the plan. Agencies were also required to include an  additional section in their fiscal year 2006 annual reports (due February 1,  2007), reporting on their progress in implementing their improvement  plans through mid to late January 2007.
As agreed, our objectives were to (1) determine the status of agencies’  processing of FOIA requests and any trends that can be seen, (2) describe  factors that contribute to FOIA requests remaining open beyond the  statutory limits, and (3) determine to what extent agencies have made  progress in addressing their backlogs of overdue FOIA requests since  implementing their improvement plans.
To describe statistics on the processing of FOIA requests, we analyzed  annual report data for fiscal years 2002 through 2006. Our intended scope  was the 24 agencies covered by the Chief Financial Officers Act, plus the  Central Intelligence Agency (herein we refer to this scope as  governmentwide). To ensure that the data reported in the annual reports  were reliable, we interviewed officials from selected agencies and  assessed the internal controls that agencies had in place for ensuring that  their data were complete and accurate (we provide a more detailed  discussion of our data reliability assessment in app. I). As a result of this  effort, we omitted 4 of the 25 agencies from our analysis: the Central  Intelligence Agency, the General Services Administration, and the  Departments of Agriculture and Housing and Urban Development. As a  result, our statistical analysis for this report was based on data from a total  of 21 agencies’ annual reports.
To describe factors that contribute to FOIA requests remaining open  beyond the statutory limits, we reviewed case files for the 10 oldest  pending requests at selected agencies. We also interviewed agency  officials regarding the factors they considered most relevant for their  agencies.
To determine to what extent agencies made progress in addressing their  backlogs of overdue FOIA requests since implementing their improvement  plans, we analyzed the improvement plan progress reports included in the  fiscal year 2006 annual reports of the 21 major agencies whose internal  controls we evaluated as sufficient. We reviewed statistics provided by the  agencies on their backlogs before the implementation of their  improvement plans and as of September 2007. We analyzed the progress  that agencies had made on reducing the backlog of overdue requests. In  addition, we reviewed the requirements for reporting progress contained  in the Executive Order, guidance from OMB and the Department of  Justice, and our past work in this area. A more detailed description of our  objectives, scope, and methodology is provided in appendix I.
We conducted this performance audit from May 2007 to March 2008 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.
subsections: section_title: Background
paragraphs: FOIA establishes a legal right of access to government records and  information on the basis of the principles of openness and accountability  in government. Before the act (originally enacted in 1966), an individual  seeking access to federal records had faced the burden of establishing a  right to examine them. FOIA established a “right to know” standard for  access, instead of a “need to know” standard, and shifted the burden of  proof from the individual to the government agency seeking to deny  access.
FOIA provides the public with access to government information either  through “affirmative agency disclosure”—publishing information in the  Federal Register or on the Internet or making it available in reading  rooms—or in response to public requests for disclosure. Public requests  for disclosure of records are the best known type of FOIA disclosure. Any  member of the public may request access to information held by federal  agencies without showing a need or reason for seeking the information.
Not all information held by the government is subject to FOIA. The act  prescribes nine specific categories of information that are exempt from  disclosure: for example, trade secrets and certain privileged commercial  or financial information, certain personnel and medical files, and certain  law enforcement records or information (see app. II for a complete list).  In denying access to material, agencies may cite these exemptions. The act  requires agencies to notify requesters of the reasons for any adverse  determination (that is, a determination not to provide records) and grants  requesters the right to appeal agency decisions to deny access.
In addition, agencies are required to meet certain time frames for making  key determinations: whether to comply with requests (20 business days  from receipt of the request); responses to appeals of adverse  determinations (20 business days from filing of the appeal); and whether  to provide expedited processing of requests (10 calendar days from receipt  of the request). The Congress did not establish a statutory deadline for  making releasable records available, but instead required agencies to  make them available promptly.
subsections: section_title: The FOIA Process at Federal Agencies
paragraphs: Although the specific details of processes for handling FOIA requests vary  among agencies, the major steps in handling a request are similar across  the government. Agencies receive requests, usually in writing (although  they may accept requests by telephone or electronically), which can come  from any organization or member of the public. Once received, the request  goes through several phases, which include initial processing, searching  for and retrieving responsive records, preparing responsive records for  release, approving the release of the records, and releasing the records to  the requester. Figure 1 is an overview of the process, from the receipt of a  request to the release of records.
During the initial processing phase, a request is logged into the agency’s  FOIA system, and a case file is started. The request is then reviewed to  determine its scope, estimate fees, and provide an initial response to the  requester (in general, this simply acknowledges receipt of the request).  After this point, the FOIA staff begins its search to retrieve responsive  records. This step may include searching for records from multiple  locations and program offices. After potentially responsive records are  located, the documents are reviewed to ensure that they are within the  scope of the request.
During the next two phases, the agency ensures that appropriate  information is to be released under the provisions of the act. First, the  agency reviews the responsive records to make any redactions based on  the statutory exemptions. Once the exemption review is complete, the  final set of responsive records is turned over to the FOIA office, which  calculates appropriate fees, if applicable. Before release, the redacted  responsive records are given a final review, possibly by the agency’s  general counsel, and then a response letter is generated, summarizing the  agency’s actions regarding the request. Finally, the responsive records are  released to the requester.
Some requests are relatively simple to process, such as requests for  specific pieces of information that the requester sends directly to the  appropriate office. Other requests may require more extensive processing,  depending on their complexity, the volume of information involved, the  requirement for the agency FOIA office to work with offices that have  relevant subject-matter expertise to find and obtain information, the  requirement for a FOIA officer to review and redact information in the  responsive material, the requirement to communicate with the requester  about the scope of the request, and the requirement to communicate with  the requester about the fees that will be charged for fulfilling the request  (or whether fees will be waived).
Specific details of agency processes for handling requests vary, depending  on the agency’s organizational structure and the complexity of the  requests received. While some agencies centralize processing in one main  office, other agencies have separate FOIA offices for each agency  component and field office. Agencies also vary in how they allow requests  to be made. Depending on the agency, requesters can submit requests by  telephone, fax, letter, or e-mail or through the Internet. In addition,  agencies may process requests in two ways, known as “multitrack” and  “single track.”
Multitrack processing involves dividing requests into two groups:  (1) simple requests requiring relatively minimal review, which are placed  in one processing track, and (2) more voluminous and complex requests,  which are placed in another track.
In contrast, single-track processing does not distinguish between simple  and complex requests. With single-track processing, agencies process all  requests on a “first-in, first-out” basis.
Agencies can also process FOIA requests on an expedited basis when a  requester has shown a compelling need for the information.
As agencies process FOIA requests, they generally place them in one of  four possible disposition categories: grants, partial grants, denials, and  “not disclosed for other reasons.” These categories are defined as follows:    Grants: Agency decisions to disclose all requested records in full.
Partial grants: Agency decisions to withhold some records, in whole or in  part, because such information was determined to fall within one or more  exemptions.
Denials: Agency decisions not to release any part of the requested records  because all information in the records is determined to be exempt under  one or more statutory exemptions.
Not disclosed for other reasons: Agency decisions not to release requested  information for any of a variety of reasons other than statutory  exemptions. The categories and definitions of these “other” reasons for  nondisclosure are shown in table 1.
When a FOIA request is denied in full or in part or the requested records  are not disclosed for other reasons, the requester is entitled to be told the  reason for the denial, to appeal the denial, and to challenge it in court.
section_title: The Privacy Act Also Provides Individuals with Access Rights
paragraphs: In addition to FOIA, the Privacy Act of 1974 includes provisions granting  individuals the right to gain access to and correct information about  themselves held by federal agencies. Thus, the Privacy Act serves as a  second major legal basis, in addition to FOIA, for the public to use in  obtaining government information. The Privacy Act also places limitations  on agencies’ collection, disclosure, and use of personal information.
Although the two laws differ in scope, procedures in both FOIA and the  Privacy Act permit individuals to seek access to records about  themselves—known as “first-party” access. Depending on the individual  circumstances, one law may allow broader access or more extensive  procedural rights than the other, or access may be denied under one act  and allowed under the other. Consequently, Justice’s Office of Information  and Privacy issued guidance that it is “good policy for agencies to treat all  first-party access requests as FOIA requests (as well as possibly Privacy  Act requests), regardless of whether the FOIA is cited in a requester’s  letter.” This guidance was intended to help ensure that requesters receive  the fullest possible response to their inquiries, regardless of which law  they cite.
In addition, Justice guidance for the annual FOIA report directs agencies  to include Privacy Act requests (that is, first-party requests) in the  statistics reported. According to the guidance, “A Privacy Act request is a  request for records concerning oneself; such requests are also treated as  FOIA requests. (All requests for access to records, regardless of which law  is cited by the requester, are included in this report.)”
Although both FOIA and the Privacy Act can apply to first-party requests,  these may not always be processed in the same way as described earlier  for FOIA requests. In some cases, little review and redaction (see fig. 1) is  required: for example, for a request for one’s own Social Security benefits  records. In contrast, various degrees of review and redaction could be  required for other types of first-party requests: for example, files on  security background checks would require review and redaction before  being provided to the person who was the subject of the investigation.
section_title: Roles of OMB and Justice in FOIA Implementation
paragraphs: Both OMB and the Department of Justice have roles in the implementation  of FOIA. Under various statutes, including the Paperwork Reduction Act,  OMB exercises broad authority for coordinating and administering various  aspects of governmentwide information policy. FOIA specifically requires  OMB to issue guidelines to “provide for a uniform schedule of fees for all  agencies.” OMB issued this guidance in April 1987.
The Department of Justice oversees agencies’ compliance with FOIA and  is the primary source of policy guidance for agencies. Specifically,  Justice’s requirements under the act are to    make agencies’ annual FOIA reports available through a single electronic  access point and notify the Congress as to their availability; in consultation with OMB, develop guidelines for the required annual  agency reports; and   submit an annual report on FOIA litigation and the efforts undertaken by  Justice to encourage agency compliance.
Within the Department of Justice, the Office of Information and Privacy  has lead responsibility for providing guidance and support to federal  agencies on FOIA issues. This office first issued guidelines for agency  preparation and submission of annual reports in the spring of 1997. It also  periodically issues additional guidance on annual reports and on  compliance, provides training, and maintains a counselor service to  provide expert, one-on-one assistance to agency FOIA staff. Further, the  Office of Information and Privacy makes a variety of FOIA and Privacy Act  resources available to agencies and the public via the Justice Web site and  online bulletins (available at www.usdoj.gov/oip/index.html).
section_title: Annual FOIA Reports Were Established by 1996 Amendments
paragraphs: In 1996, the Congress amended FOIA to provide for public access to  information in an electronic format (among other purposes). These  amendments, referred to as e-FOIA, also required that agencies submit a  report to the Attorney General on or before February 1 of each year that  covers the preceding fiscal year and includes information about agencies’  FOIA operations. The following are examples of information that is to be  included in these reports:    number of requests received, processed, and pending at the end of the    median number of days taken by the agency to process different types of    number of determinations made by the agency not to disclose information  and the reasons for not disclosing the information;    disposition of administrative appeals by requesters;  information on the costs associated with handling of FOIA requests; and full-time-equivalent staffing information.
In addition to providing their annual reports to the Attorney General,  agencies are to make them available to the public in electronic form. The  Attorney General is required to make all agency reports available online at  a single electronic access point and report to the Congress no later than  April 1 of each year that these reports are available in electronic form.  (This electronic access point is www.usdoj.gov/oip/04_6.html.)
section_title: Executive Order Led to Various Activities Aimed at Improving FOIA Operations
paragraphs: On December 14, 2005, the President issued Executive Order 13392,  setting forth a policy of citizen-centered and results-oriented FOIA  administration. Briefly, according to this policy, FOIA requesters are to  receive courteous and appropriate services, including ways to learn about  the status of their requests and the agency’s response, and agencies are to  provide ways for requesters and the public to learn about the FOIA  process and publicly available agency records (such as those on Web  sites). In addition, agency FOIA operations are to be results-oriented: that  is, agencies are to process requests efficiently, achieve measurable  improvements in FOIA processing (including reducing backlog of overdue  requests), and reform programs that do not produce appropriate results.
To carry out this policy, the order required, among other things, that  agency heads designate Chief FOIA Officers to oversee their FOIA  programs. The Chief FOIA Officers were directed to conduct reviews of  the agencies’ FOIA operations and develop improvement plans to ensure  that FOIA administration was in accordance with applicable law, as well  as with the policy set forth in the order. By June 2006, agencies were to  submit reports that included the results of their reviews and copies of their  improvement plans.
A major focus of the order was for agency plans to include specific  activities that the agency would implement to eliminate or reduce any  FOIA backlog of overdue requests: that is, requests for records that have  not been responded to within the statutory time limit. Note that this  backlog of overdue requests is distinct from the pending cases reported in  the annual reports (those FOIA cases open at the end of the reporting  period). For the annual reports, agencies are required by the statute to  provide a count of FOIA requests that are still pending (that is, not yet  closed) at the end of the reporting period. In response to this annual  report requirement, agency tracking systems and processes have been  geared to providing statistics on pending requests. Pending cases totals  would generally be larger than backlog, as the term is used in the  Executive Order, since they would include any requests received within  the last 20 to 30 working days of the reporting period, which would not be  overdue.
The order also instructed the Attorney General to issue guidance on  implementation of the order’s requirements for agencies to conduct  reviews and develop plans. In addition, the order instructed agencies to  report on their progress in implementing their plans and meeting  milestones as part of their annual reports for fiscal years 2006 and 2007;  agencies were instructed to account in the annual report for any  milestones missed and also to report them to the President’s Management  Council.
In April 2006, the Department of Justice posted guidance on  implementation of the order’s requirements for FOIA reviews and  improvement plans. This guidance suggested a number of areas of FOIA  administration that agencies might consider when conducting their  reviews and developing improvement plans. (Examples of some of these  areas are automated tracking capabilities, automated processing,  receiving/responding to requests electronically, forms of communication  with requesters, and systems for handling referrals to other agencies.) To  encourage consistency, the guidance also included a template for agencies  to use to structure their plans and to report on their reviews and plans.
The order’s emphasis on backlog provided an incentive for agencies to  focus on reducing overdue requests. With respect to backlog reduction,  the guidance stated that agencies were not limited to time horizons in  fiscal years 2006 and 2007 only. According to the guidance, if an agency  believed that reform could enable it to process requests in a more efficient  manner, thereby reducing its backlog, the agency should consider  implementing these measures even though they might result in a short- term increase in backlog, as long as it was confident of a long-term benefit.  At the same time, the guidance advised agencies to consider what they  might do to counterbalance any anticipated short-term effect through  other means of backlog reduction.
Also included in this guidance was supplemental information on preparing  the annual FOIA reports for fiscal years 2006 and 2007. According to the  guidance, the annual reports for fiscal years 2006 and 2007 were to include  an additional section on agencies’ progress in implementing their plans to  improve their FOIA activities. The guidance provided a template for  reporting progress and stated that, for the fiscal year 2006 report (due  February 1, 2007), agencies should be able to report on progress for at  least 7 months (i.e., from no later than June 14, 2006, to late January 2007).  The improvement plans are posted on the Department of Justice Web site  at www.usdoj.gov/oip/agency_improvement.html.
In June 2007, the Attorney General submitted a report to the President on  the progress that agencies made in the first months of implementing their  FOIA improvement plans, as reported in the fiscal year 2006 annual  reports of all 92 federal departments and agencies. The report provided  an overall assessment of progress followed by a more detailed discussion  of agency activities. According to this assessment, agencies made  measurable progress in implementing the Executive Order during the first  reporting period (about 7 months of activity under the FOIA improvement  plans), with more than half the agencies (54) reporting successes in  achieving all their milestones and goals on time. Discussing 25 key  agencies, the report stated that 22 reported meaningful progress in FOIA  administration, with 11 achieving all milestones on time; however, 3  reported one or more milestones for which they failed to achieve progress.  The report also discussed areas where agencies reported deficiencies in  meeting their early milestones or goals, and it made recommendations for  improving FOIA implementation. In addition, it presented progress charts  for the 25 key agencies showing whether they had achieved their planned  goals and milestones.
Also in June 2007, the Department of Justice posted guidance on providing  updated status reports to the President’s Management Council. These  status reports were required by August 1, 2007, from agencies who  reported deficiencies in meeting the goals in their fiscal year 2006 annual  FOIA reports. According to this guidance, such agencies were to report on  their progress toward completing the corrective steps described in their  annual reports. In the updated status reports, agencies were instructed to  account for any missed milestone by identifying it and outlining the steps  taken and to be taken to address the deficiency.
In September 2007, the Department of Justice posted guidance to agencies  on submitting backlog reduction goals for fiscal years 2008, 2009, and  2010. According to the guidance, any agency that had any request or  appeal pending beyond the statutory time period at the end of fiscal year  2007 was to establish backlog reduction goals for fiscal years 2008, 2009,  and 2010, and was to publish such goals on the agency’s Web site. Those  goals were to be expressed in two ways. First, each agency was required  to set a goal for the number of requests and the number of appeals that it  planned to process during each fiscal year from 2008 through 2010.  Second, each agency was required to set a goal for the number of requests  and the number of appeals that the agency estimated would be pending  beyond the statutory time period (i.e., backlog of overdue requests) at the  end of each fiscal year from 2008 through 2010.
In October 2007, Justice issued supplemental guidance on the section of  the fiscal year 2007 annual FOIA reports in which agencies were to  describe progress on their improvement plans and provide certain  additional statistics. Among other things, this guidance required agencies  to track their 10 oldest pending requests; to track the number of  consultations received, processed, and pending; and to report this  information in their fiscal year 2007 annual FOIA reports. It also provided  templates for the progress reports and additional statistics.
section_title: In Previous Work, We Have Examined Processing Statistics and Agency Improvement Plans
paragraphs: In 2001, in response to a congressional request, we prepared the first in a  series of reports on the implementation of the 1996 amendments to FOIA,  starting from fiscal year 1999. In these reviews, we examined the  contents of the annual reports for 25 major agencies (shown in table 2).  They include the 24 major agencies covered by the Chief Financial Officers  Act, as well as the Central Intelligence Agency and, until 2003, the Federal  Emergency Management Agency (FEMA). In 2003, the creation of DHS,  which incorporated FEMA, led to a shift in some FOIA requests from  agencies affected by the creation of the new department, but the same  major component entities were reflected in the 25 agencies.
Our previous reports included descriptions of the status of reported FOIA  implementation, including any trends revealed by comparison with earlier  years. We noted general increases in requests received and processed, as  well as growing numbers of pending requests carried over from year to  year.
In addition, our 2001 report disclosed that data quality issues limited the  usefulness of agencies’ annual FOIA reports and that agencies had not  provided online access to all the information required by the act as  amended in 1996. We therefore recommended that the Attorney General  direct the Department of Justice to improve the reliability of data in the  agencies’ annual reports by providing guidance addressing the data quality  issues we identified and by reviewing agencies’ report data for  completeness and consistency. We further recommended that the Attorney  General direct the department to enhance the public’s access to  government records and information by encouraging agencies to make all  required materials available electronically. In response, the Department of  Justice issued supplemental guidance, addressed reporting requirements  in its training programs, and continued reviewing agencies’ annual reports  for data quality. Justice also worked with agencies to improve the quality  of data in FOIA annual reports.
Most recently, our March 2007 FOIA report discussed the fiscal year 2005  annual report data, as well as the agency improvement plans submitted in  response to the Executive Order. Among other things, we observed that  agencies showed great variations in the median times to process requests  (less than 10 days for some agency components to more than 100 days at  others) but that the ability to determine trends in processing times is  limited because these times are reported in medians only, without  averages (that is, arithmetical means) or ranges. Although medians have  the advantage of providing representative numbers that are not skewed by  a few outliers, it is not statistically possible to combine several medians to  develop broader generalizations (as can be done with arithmetical means).  We suggested that to improve the usefulness of the statistics in agency  annual FOIA reports, the Congress consider amending the act to require  agencies to report additional statistics on processing time, which at a  minimum should include average times and ranges. The Openness  Promotes Effectiveness in Our National Government Act (OPEN  Government Act) of 2007, enacted December 31, 2007, as Public Law 110- 175, included provisions expanding reporting requirements to include  average and range information, along with median processing time  statistics.
Regarding the improvement plans, we reported in 2007 that the 25 agency  plans mostly included goals and timetables addressing the areas of  improvement emphasized by the Executive Order. We noted that almost  all plans contained measurable goals and timetables for avoiding or  reducing backlog. Although details of a few plans could be improved, all  the plans focused on making measurable improvements and formed a  reasonable basis for carrying out the goals of the Executive Order.
section_title: Trends in FOIA Processing Appear Similar to Previous Years
paragraphs: The data reported by 21 major agencies in annual FOIA reports from 2002  to 2006 reveal a number of general trends. (Data from four agencies are  omitted, as discussed below.) Among these trends are increases in  requests received, processed, and pending. Specifically, the public  continued to submit more requests for information from the federal  government through FOIA, and the numbers of requests processed also  increased. In addition, the number of pending requests increased because  of increases at DHS, which accounted for about half of all pending  requests at the end of fiscal year 2006. However, the rate of increase in  pending requests was less than in the previous year.
subsections: section_title: Four Agencies’ Statistics Are Not Included Because Their Completeness and Accuracy Were Not Assured
paragraphs: Our statistical analysis omits data from the General Services  Administration (GSA), and the Departments of Agriculture and Housing  and Urban Development (HUD), because we did not have reasonable  assurance that the data in their fiscal year 2006 FOIA annual reports were  accurate and complete. We also omitted the Central Intelligence Agency,  which did not provide information in response to our requests, so we  could not assess its data reliability. The other three agencies did not  provide evidence of internal controls that would provide reasonable  assurance that FOIA data were recorded completely and correctly, or they  acknowledged material limitations of the data.
The accuracy of annual report data is important so that government FOIA  operations can be monitored and understood by the Congress and the  public. To provide reasonable assurance of accuracy, agencies rely on  internal controls to minimize the risk that data are incomplete or  incorrect. Specific examples of such controls include supervisory or  other reviews of the quality of data entry, spot checks of selected records,  software edit checks of data entered (such as prevention of duplicate  entries), and other manual or automatic processes to detect data entry  errors.
We determined that GSA did not have adequate internal controls to  provide reasonable assurance that the data in its fiscal year 2006 annual  report were accurate and complete. Although about one-third of GSA  FOIA requests were handled by FOIA staff at GSA headquarters,  mechanisms had not been established to verify that data were entered  correctly into the system that tracked FOIA requests. One staff person was  responsible for entering data, but the data were not checked periodically  to ensure that they were correct. Agency officials told us that errors could  be caught if, for example, the GSA program office responding to a request  observed a discrepancy when the request letter was transmitted to the  program office. However, they acknowledged that for the fiscal year 2006  annual report, the FOIA office did not perform regular reviews or spot  checks of the data to check for errors. Since the 2006 annual report was  prepared, GSA has increased the staff at the headquarters FOIA office, and  it has changed its approach to FOIA tracking by implementing a  centralized tracking system for requests handled both by headquarters and  by the GSA regional offices. According to officials, the centralized tracking  system provides the agency with additional controls, but GSA had not  established procedures for checks to ensure that information on requests  was entered correctly at all stages. Until the agency establishes checks of  data entered or other internal controls, such as periodic reviews, it will  have reduced assurance that data are captured completely and accurately.
Data from HUD are omitted because HUD officials told us that the fiscal  year 2006 annual FOIA report statistics were not accurate. As part of its  improvement plan implementation, HUD performed an organizational  realignment in which FOIA processing functions were transferred to the  Office of the Executive Secretariat. According to the Executive Secretary,  after the realignment, the office found that many requests in the  department’s FOIA tracking system were incorrectly recorded as open,  although they had in fact been closed. According to this official, the  department’s regional and field offices had not been consistently closing  requests in the system, resulting in inaccuracies. In addition, not all field  offices were using the tracking system, but were using spreadsheets and  other means of tracking. According to HUD officials, they were taking  actions to remedy these problems by working with the field offices to  make sure that data were entered correctly and cases closed out properly.  Also, in the department’s progress report on its improvement plan, HUD  reported that it had selected and was acquiring a new automated FOIA  tracking system. According to the department, in December 2007, it began  implementing this system and training staff in its use, and all offices  (including headquarters) would be required to use it. However, the  implementation was not yet complete departmentwide. Further, although  the department planned to develop policies and procedures to govern the  use of the system, it had not yet done so; if well designed, these policies  and procedures could help ensure that all FOIA offices, including regional  and field offices, are using the tracking system consistently and that  information is entered accurately and promptly. Until the department  develops and establishes such policies and procedures, it will be unable to  provide annual report data that are accurate and complete.
We are also omitting data from the Department of Agriculture. In our  March 2007 report on the FOIA annual reports for fiscal year 2005, we  omitted data from the department’s annual FOIA report because a major  component acknowledged material limitations in its data. Although most  Agriculture components expressed confidence in their data, one  component did not: the Farm Service Agency, which reportedly processed  over 80 percent of the department’s total FOIA requests. According to this  agency’s FOIA Officer, portions of the agency’s data in annual reports  were not accurate or complete. We recommended that the department  revise its FOIA improvement plan to include activities, goals, and  milestones to improve data reliability for the Farm Service Agency and to  monitor results. Since then, Agriculture has taken actions to improve the  reliability of its data, such as issuing guidance and conducting training.  The department is also developing an electronic tracking software system  that it expects to improve the timeliness, accuracy, depth, and breadth of  the department’s FOIA reporting. However, our reliability assessment was  performed toward the end of fiscal year 2006, and our recommendation  was made in March 2007, which was after the data for the annual report  were assembled. Thus the department’s actions were not undertaken in  time to affect the statistics for fiscal year 2006. If the department  continues its improvement efforts, including establishing internal controls  and processes to ensure that data are entered accurately and completely, it  should increase its assurance that the FOIA data collected by the Farm  Service Agency are complete and accurate.
section_title: Increases in Requests Received and Processed Are Generally Slowing
paragraphs: The numbers of FOIA requests received and processed continue to rise,  but the rate of increase has flattened in recent years. Figure 2 shows total  requests reported for the 21 agencies for fiscal years 2002 through 2006.  This figure shows SSA’s share separately because of the large number of  requests that the agency reported. As the figure shows, not only do SSA’s  results dwarf those for all other agencies, they also reveal a major jump in  requests received and processed from 2004 to 2005 (an increase of 92  percent), as well as a continued rise in 2006 (an increase of 8 percent). In  2005, SSA attributed the jump to an improvement in its method of counting  requests and stated that, in previous years, these requests were  undercounted. Because of the undercount in previous years and the high  volume of SSA’s requests, including SSA’s statistics in governmentwide  data would obscure year-to-year comparisons.
Figure 3 presents statistics omitting SSA on a scale that allows a clearer  view of the rate of increase in FOIA requests received and processed in the  rest of the government. As this figure shows, when SSA’s numbers are  excluded, the rate of increase is modest and has been flattening: For the  whole period (fiscal years 2002 to 2006), requests received increased by  about 23 percent, and requests processed increased by about 23 percent.  Most of this rise occurred from fiscal years 2002 to 2003: about 18 percent,  both for requests received and for requests processed. In contrast, in the  last two fiscal years, the rise was much less: for requests received, the rise  was roughly 3 percent from fiscal year 2004 to 2005 and another 1 percent  to 2006; for requests processed, the rise was about 2 percent from fiscal  year 2004 to 2005 and another 2 percent from fiscal year 2005 to 2006.
Specifically with regard to SSA, in fiscal year 2006, as in the previous year,  the vast majority of requests reported fall into a category SSA calls “simple  requests handled by non-FOIA staff;” according to SSA, these are typically  requests by individuals for access to their own records, as well as requests  in which individuals consent for SSA to supply information about  themselves to third parties (such as insurance and mortgage companies)  so that they can receive housing assistance, mortgages, and disability  insurance, among other things. SSA stated that these requests are  handled by personnel in about 1,500 locations in SSA, including field and  district offices and teleservice centers. Such requests are almost always  granted, according to SSA, and most receive immediate responses.  According to SSA officials, they report these requests because, as  discussed earlier, Justice guidance instructs agencies to treat Privacy Act  requests (requests for records concerning oneself) as FOIA requests and  report them in the annual reports.
SSA attributed the jump that occurred in fiscal year 2005 to an  improvement in its method of counting these simple requests, which can  be straightforwardly captured by its automated systems. For the past  several years, these simple requests have accounted for the major portion  of all SSA requests reported (see table 3). In fiscal year 2006, all but about  34,000 of SSA’s over 18 million requests fell into this category. From fiscal  years 2002 to 2005, SSA’s FOIA reports attributed the increases in this  category largely to better reporting, as well as actual increases in requests.
Besides SSA, agencies reporting large numbers of requests received were  the Departments of Defense, Health and Human Services, Homeland  Security, Justice, the Treasury, and Veterans Affairs, as shown in table 4.  The rest of agencies combined account for only about 3 percent of the  total requests received (if SSA’s simple requests handled by non-FOIA staff  are excluded). Table 4 presents, in descending order of request totals, the  numbers of requests received and percentages of the total (calculated with  and without SSA’s statistics on simple requests handled by non-FOIA  staff).
section_title: Most Requests Are Granted in Full
paragraphs: Most FOIA requests in 2006 were granted in full, with relatively few being  partially granted, denied, or not disclosed for other reasons (statistics are  shown in table 5). This generalization holds with or without SSA’s  inclusion. The percentage of requests granted in full was about 87 percent,  which is about the same as in previous years. However, if SSA’s numbers  are included, the proportion of grants dominates the other categories— raising this number from 87 percent of the total to 98 percent. This is to be  expected, since SSA reports that it grants the great majority of its simple  requests handled by non-FOIA staff, which make up the bulk of SSA’s  statistics.
Compared to 2005, there was a slight increase in the percentage of denials:  from 0.75 percent to 1.18 percent of total requests received (excluding  SSA); this is an increase of 10,860 denials. The percentage of requests not  disclosed for other reasons (excluding SSA) decreased from 8.0 percent to  7.9 percent (a decrease of 2,644 requests not disclosed for other reasons).
As shown in figure 4, three of the seven agencies that handled the largest  numbers of requests (see table 4) also granted the largest percentages of  requests in full: the Department of Health and Human Services (HHS),  SSA, and the Department of Veterans Affairs (VA). Figure 4 shows, by  agency, the disposition of requests processed: that is, whether a request  was granted in full, partially granted, denied, or “not disclosed for other  reasons” (see table 1 for a list of these reasons).
As the figure shows, the numbers of fully granted requests varied widely  among agencies in fiscal year 2006. Four agencies made full grants of  requested records in over 80 percent of cases they processed—HHS, SSA,  VA, and the Small Business Administration (SBA). This is a decrease from  last year, when two other agencies—Energy and the Office of Personnel  Management (OPM)—also made full grants of requested records in over 80  percent of the cases they processed. This year, Energy provided full grants  75 percent of the time, compared to 82 percent last year, and OPM  provided full grants 67 percent of the time, compared to 81 percent last  year.
In contrast, several agencies tended not to make full grants. Of 21  agencies, 10 made full grants of requested records in less than 40 percent  of their cases (compared to 12 in 2005). Four of these 10 agencies—the  Agency for International Development (AID), DHS, the National Science  Foundation (NSF), and State—made full grants in less than 20 percent of  cases processed; in contrast, in 2005, only 2 agencies (NSF and State) fell  into this category.
This variance among agencies in the disposition of requests has been  evident in prior years as well. In many cases, the variance can be  accounted for by the types of requests that different agencies process. For  example, as discussed earlier, SSA grants a very high proportion of  requests because most of its requests are for personal records that are  routinely made available to the individuals concerned (or to others with  their consent). Similarly, VA routinely makes medical records available to  individual veterans, and HHS also handles large numbers of Privacy Act  requests. Such requests are generally granted in full. Other agencies, on  the other hand, receive numerous requests whose responses must  routinely be redacted to prevent disclosure of personal or other exempt  information. For example, NSF reported in its fiscal year 2005 annual  report that most of its requests (an estimated 90 percent) are for copies of  funded grant proposals. The responsive documents are routinely redacted  to remove personal information on individual principal investigators (such  as salaries, home addresses, and so on), which results in high numbers of  “partial grants” compared to “full grants.”
section_title: Processing Times Vary, but Broad Generalizations Are Limited
paragraphs: For 2006, the reported time required to process requests (by track) varied  considerably among agencies. Table 6 presents data on median processing  times for fiscal year 2006. For agencies that reported processing times by  component rather than for the agency as a whole, the table indicates the  range of median times reported by the agency’s components.
As the table shows, 10 agencies had components that reported processing  simple requests in less than or equal to 10 days: these components are  parts of DHS, Energy, the Interior, Justice, Labor, Transportation,  Education, HHS, the National Aeronautics and Space Administration  (NASA), and the Treasury. For each of these agencies, the lower value of  the reported ranges is less than or equal to 10. On the other hand, median  time to process simple requests is relatively long at seven organizations— components of DHS, Energy, Interior, Justice, Education, the  Environmental Protection Agency (EPA), and NASA—as shown by median  ranges whose upper-end values are greater than 100 days.
For complex requests, the picture is similarly mixed. Components of six  agencies (the Interior, Labor, HHS, NASA, the Treasury, and VA) reported  processing complex requests quickly—with a median of less than 10 days.  In contrast, other components of several agencies (DHS, Energy, Justice,  Transportation, Education, EPA, HHS, the Nuclear Regulatory  Commission, State, and the Treasury) reported relatively long median  times to process complex requests—with median days greater than 100.
Five agencies (AID, HHS, NSF, SBA, and SSA) reported using single-track  processing. The median processing times for single-track processing  varied from 7 days (at SBA) to 399 days (at an HHS component).
The median processing times for requests pending also varied widely  among the agencies. In 2006, eight agencies reported median processing  times for pending requests greater than 1 year (defined as 251 business  days) in length. These eight agencies are AID, DHS, Energy, the Interior,  Justice, Education, HHS, and VA. One agency reported a component  having a median processing time for its pending cases of 1,200 days, which  is nearly 5 years.
As we reported in our March 2007 report, our ability to make further  generalizations about FOIA processing times is limited by the fact that, as  required by the act, agencies report median processing times only and not,  for example, arithmetic means (the usual meaning of “average” in  everyday language). With only medians, it is not statistically possible to  combine results from different agencies to develop broader  generalizations, such as a governmentwide statistic based on all agency  reports, statistics from sets of comparable agencies, or an agencywide  statistic based on separate reports from all components of the agency.  This was the basis for the suggestion in our previous report that the  Congress consider amending the act to require agencies to report average  times and ranges; this requirement is a provision of the OPEN Government  Act, enacted December 31, 2007, as Public Law 110-175.
section_title: Increase in Pending Cases for 21 Agencies Is Mostly Associated with DHS
paragraphs: In addition to the increase in numbers of requests processed at the 21  agencies, the number of pending cases—requests carried over from one  year to the next—has increased. In 2002, pending requests at the 21  agencies were reported to number about 135,000, whereas in 2006, about  218,000—38 percent more—were reported. In fiscal year 2006, as shown in  figure 5, the rate of increase flattened: the pending totals rose 12 percent  from 2005, compared to a rise of 20 percent from fiscal year 2004 to 2005.
These statistics include pending cases reported by SSA, because SSA’s  pending cases do not include simple requests handled by non-FOIA staff  (for which SSA does not track pending cases). As the figure shows, these  pending cases do not change the governmentwide picture significantly.
In contrast, since its establishment in 2003, DHS has accounted for a major  and increasing portion of pending requests governmentwide, as shown in  figure 6. Although 11 other agencies reported that their numbers of  pending cases had increased since 2003, these increases were offset by  decreases at other agencies, so that, as the figure shows, pending cases for  the other 20 agencies combined are relatively stable.
Within DHS, about 89 percent of pending cases are from Citizenship and  Immigration Services (CIS), which receives the vast majority of all FOIA  requests sent to the department—over 100,000 incoming requests annually.  According to the department, most of CIS’s FOIA requests come from  individuals and their representatives seeking information contained within  the so-called Alien Files (A-files); this information may be used in applying  for immigration benefits or in immigration proceedings, as well as for  genealogy studies. One issue in relation to these files is that about 55  million hard-copy A-files are shared with Immigration and Customs  Enforcement (ICE), which can lead to delays in locating, referring, and  processing documents. According to the department, CIS and ICE have  convened a working group to establish a streamlined approach to  processing documents in the A-files, and they are also assessing  digitization of the files, which would allow both components to  electronically access any file.
Table 7 shows the percentage of the total pending requests that each  agency accounted for in fiscal year 2006; to provide an idea of the scale of  these requests in comparison to the agency’s annual workload, the last  column provides the number received. As the table shows, the six agencies  that accounted for most requests received also accounted for the most  requests pending, although DHS’s rank in the number of pending requests  was higher than its rank in the number of received requests. The table also  shows the great variation in the relationship between pending and  received numbers for individual agencies.
Another way to consider progress in reducing pending cases is through  individual agency processing rates—that is, the number of requests that an  agency processes relative to the number it receives. Agencies that process  more requests than they receive will decrease the number of pending  cases remaining at the end of a given year. From 2002 to 2006, individual  agencies show mixed results in this regard. In figure 7, bars extending  above the centerline at 100 percent indicate that an agency reported  processing more requests than it received in that year, whereas bars  dropping below the centerline indicate that it reported processing fewer  than it received.
section_title: Agencies’ Oldest Requests May Date Back Several Years
paragraphs: In Justice’s guidance on the annual reports for fiscal year 2006, it directed  agencies to include additional statistics as part of the new section on  agencies’ progress implementing their improvement plans. These  additional statistics included the time ranges of requests pending. Based  on these statistics, figure 8 provides a timeline showing the oldest pending  requests reported by each of the agencies. As seen in the figure, as of the  end of calendar year 2006, the age of the oldest pending requests ranged  from less than 1 year to about 18 years. Note that these requests were  those reported in the fiscal year 2006 annual reports; they do not  necessarily remain open.
section_title: Several Factors Contribute to FOIA Cases Remaining Open beyond the Statutory Limit
paragraphs: Agencies are required to meet certain time frames for determining whether  to comply with requests: generally 20 business days from receipt of the  request, although this time may be extended by 10 days in “unusual  circumstances,” such as when requests involve a voluminous amount of  records or require consultation with another agency. The Congress did not  establish a statutory deadline for making releasable records available, but  instead required agencies to make them available promptly.
However, it is not uncommon for agencies to spend much more than the  statutory 20 or 30 days to determine whether records can be released and  to supply the records. According to our examination of selected case files  and discussions with agency officials, the factors that contribute to  requests remaining open include the following:    Requests may involve large volumes of responsive records.
Requests may require extensive review and consultations.
Agencies may need to notify submitters of information before disclosure.
Requests may be delayed until ongoing investigations are completed.
Finally, at one agency component, requests more than 6 years old received  low priority because the component believed that they could no longer be  pursued in litigation.
Requests may involve large volumes of responsive records. For requests  that involve large volumes of responsive records, it may take significant  time to assemble, review and redact, and duplicate records. In addition,  processing of such requests may be delayed while requests received earlier  are processed. In addressing such requests, agencies report that they  contact requesters to determine whether a more limited or targeted  selection of records will meet their needs, and that this can lead requesters  to narrow their requests. In addition, agencies may use multitrack  processing, putting voluminous or complex requests in a separate queue  (which allows relatively simple requests to be processed more quickly).
The selection of agencies’ oldest case files that we reviewed included  several examples of voluminous requests. For example, at Defense, 5 of  the 10 oldest cases remained open, in part because the responsive records  were voluminous. For one request for records on the 1972 Strategic Arms  Limitation Talks (SALT), Defense’s case file indicated that the request  involved the review and coordination of 936 pages of top secret  documents. A request for 1970 SALT records involved 613 pages of top  secret documents.
At HHS, 4 of the 10 oldest case files included references to voluminous  records. For example, for a media request for background information on  a report by the Centers for Medicare and Medicaid Services on an incident  involving an error at a hospital, the centers indicated that the responsive  documents were bulky, consisting of about 500 to 600 pages of records.
At VA, all 10 oldest pending requests, dating from 2003 to 2005, were in the  VA Office of the Inspector General. For one of these cases, the responsive  records were described as voluminous (about 700 pages) and in need of  review by legal staff; the requester was informed that because of this, they  would be placed in a queue with other voluminous requests requiring legal  review. The request reached the head of the queue about 2 years later  (May 2007), and three incremental releases were made from May to June  2007. (According to VA, this request was closed on August 17, 2007.) VA  officials also described a more recent voluminous request involving a  database containing more than 72,000 active files, with 431 data elements  and over 4 million PDF files, each of which had to be reviewed for  personal data.
At Justice, two of the six oldest case files included letters explaining that  because of the high volume of responsive records associated with each,  the requests had been placed in the pending queue for processing. In one  case, a letter indicated that the request had moved from number 91 in the  pending queue in October 1990 to number 54 in November 1993; according  to the letter, the processing delay was caused by large numbers of requests  received, as well as the need to devote part of the office’s resources solely  to processing documents in response to legislative requirements (the  President John Fitzgerald Kennedy Assassination Records Collection Act  of 1992).
Requests may require extensive review and consultations. Review of  requests may require coordination with many organizational components,  or they may require the agency to consult with other agencies. If  responsive records are classified, they must be reviewed and redacted by  personnel with appropriate clearances. Classified or intelligence issues  may involve both internal reviews and external consultation when other  agencies must review and approve the release of information gathered  before a case can be closed. Agency officials stated that this coordination  can be time-consuming, especially when it is not clear which agencies  have ownership of the information. In other cases, proper review and  redaction may require the involvement of subject-matter experts or others  with specialized knowledge.
Defense’s oldest case files, as described above, included several involving  top secret documents, which required extensive reviews by multiple  components before release. All but one of Defense’s 10 oldest cases  showed evidence of consultations and coordination, in some cases with  multiple organizations (these included Commerce, State, and the Central  Intelligence Agency).
In one of Justice’s six oldest cases, the responsive documents had been  sent to external agencies for review of classified documentation to  determine whether the material warranted continued declassification and  whether it could be released.
Agencies may need to notify submitters of information before  disclosure. Before releasing information under FOIA, federal agencies are  generally required to provide predisclosure notifications to submitters of  confidential commercial information. Officials stated that when agencies  receive requests for proprietary, acquisition, or procurement records, the  submitter notification process can delay closure of these cases. For  example, NSF officials stated that most of their requests are for copies of  funded grant proposals, which require FOIA staff to contact grantees for  approval of the release. According to NSF, many of these grantees are  academics who are not familiar with FOIA processes (including the  submitter review process); NSF officials state that locating the submitters  and explaining the process can be time-consuming.
Requests may be delayed until ongoing investigations are completed.  According to our analysis of the 10 oldest case files from selected  agencies, several old requests remained open because they sought  documents regarding investigations that were still ongoing. At DHS and  VA, most of the oldest FOIA requests remain open because the responsive  records are relative to ongoing investigations. Some examples of these  requests follow:    At DHS, 8 of the 10 oldest pending requests (dating from 2000 to 2001)  were requests directed to the Coast Guard for documents on vessel  incidents (such as collisions between vessels). In these cases, the Coast  Guard responded to requesters that, as the incident was still under  investigation, material might be protected from release as part of an  ongoing law enforcement proceeding; the exemptions cited included 7(A),  which exempts records or information compiled for law enforcement  purposes to the extent that the production of such records could be  expected to interfere with enforcement proceedings. The requesters were  offered the choice of receiving any material available at the time or  authorizing an extension until the investigation was complete; in these  cases, requesters asked that requests remain open, pending completion of  the investigation.
At VA, 7 of the 10 oldest pending requests (dating from 2003 to 2005) were  for documents concerning investigations or reviews by the VA Office of  the Inspector General. For example, one request was for records of an  investigation of medical research activities at a VA medical center that was  opened after employees reported that established research procedures  were not being properly followed. Another was for records regarding  complaints filed against a health care provider. In these and other cases,  requesters were informed that the records were not yet releasable and  cited exemptions, including 7(A). For these 7 requests, VA informed  requesters that it would keep the requests open until the investigations  were complete.
The Director of Justice’s Office of Information and Privacy stated that the  agencies could have simply closed the requests as denials under  exemption 7(A) and any other applicable exemption (see app. II); she also  noted that these requests remained open in accordance with the  requesters’ wishes.
Requests more than 6 years old may receive low priority. At one agency  component, a set of old cases remained open because the agency believed  they were no longer subject to litigation. In accordance with the general  federal statute of limitations, lawsuits against the United States generally  are barred after 6 years after the right of action first accrues. At Justice’s  Criminal Division, requests over 6 years old were given lower priority than  requests for which litigation was deemed likely, and, in some instances,  the original request processing files were lost. That is, the Criminal  Division was unable to locate the original processing files for 4 requests  that it had identified as among its 10 oldest pending requests, dating from  around the early 1990s. (Justice officials later informed us that one of  these cases was in fact closed and had been incorrectly identified.) In  August 2007, the Chief of the division’s FOIA/Privacy Act Unit (now  retired) told us that he could not account for the loss, but that the unit had  recently undergone a move and personnel changes, which might have been  contributing factors. According to this official, the unit was creating  replacement files from a tracking database and would then take action to  close the requests.
According to its former chief, the FOIA/Privacy Act Unit gave priority to  avoiding litigation, since lawsuits can generate a significantly increased  workload and slow down other FOIA processing. For example, according  to this official, the Criminal Division was then processing over 30,000  documents as a result of a lawsuit. Criminal Division officials stated that  because of the magnitude of this task, which was subject to supervision by  the court and potential sanctions if not timely, it was not practical to divert  resources to process older cases.
Although the goal of avoiding litigation is reasonable, the lack of priority  given to the division’s oldest case files is inconsistent with the  department’s expressed emphasis on what it termed “an emerging area of  concern”—the longest-pending FOIA requests that agencies have on  hand. According to Justice, its Office of Information and Privacy (which  has lead responsibility for providing guidance and support to federal  agencies on FOIA issues) established as a backlog-related goal the regular  closure of the 10 oldest FOIA requests pending at eight senior leadership  offices in the department, for which the office performs FOIA processing.  According to the department, this served as an example for other agencies,  some of which followed suit. (Also, in October 2007, Justice issued new  requirements for all agencies to report on their 10 oldest pending requests  and 10 oldest pending consultations received from other agencies.)
Further, although the statute of limitations may prevent requesters from  filing suit after 6 years, following a practice that avoids applying resources  to cases older than this has the potential effect of increasing the number of  very old open requests having little prospect of being closed.
In response to this issue, the Criminal Division’s FOIA/Privacy Act Unit  began taking action to close the requests that had missing case files,  according to its former chief. Also, in December 2007, the current deputy  chief of the Criminal Division told us that an attorney had been detailed to  work full time on the oldest cases (those dating from 2000 and before);  according to this official, the Criminal Division had decreased its pending  list by over 100 cases between September 14 and November 29, 2007.  However, the division’s improvement plan did not address closing its  oldest cases, and the division had not established time frames for doing so.  Although the actions described by the deputy chief, if implemented  appropriately, should help to address this issue, establishing goals and  time frames would provide further assurance that attention to this issue is  sustained appropriately. Without such goals and time frames, the Criminal  Division risks perpetuating the tendency for the oldest requests to remain  open indefinitely.
section_title: Since Implementing Improvement Plans, Several Agencies Reduced Backlogs of Overdue or Pending Requests, but the Governmentwide Picture Is Incomplete
paragraphs: Following the emphasis on backlog reduction in Executive Order 13392  and agency improvement plans, many agencies have shown progress in  decreasing their backlogs of overdue requests as of September 2007.  Specifically, of 16 agencies we reviewed that were able to provide  statistics, 9 decreased overdue or pending requests, 5 experienced  increases, and 2 had no material change. However, the statistics provided  by these agencies varied widely, representing a mix of overdue cases and  total pending cases, as well as varying time frames. Further, 3 of the 21  agencies were unable to provide statistics supporting their backlog  reduction efforts, and 1 provided statistics by component, which could not  be aggregated to provide an agencywide result. (The remaining agency  reported no backlog before or after implementing its plan.) Tracking and  reporting statistics on overdue cases is not a requirement of the annual  FOIA reports or of the Executive Order. Although both the Executive  Order and Justice’s implementing guidance put a major emphasis on  backlog reduction, agencies were given flexibility in developing goals and  metrics that they considered most appropriate in light of their current  FOIA operations and individual circumstances. As a result, agencies’ goals  and metrics vary widely, and progress could not be assessed against a  common metric. Justice’s most recent guidance directs agencies to set  goals for reducing backlogs of overdue requests in future fiscal years,  which could lead to the development of a consistent metric; however, it  does not direct agencies to monitor and report overdue requests or to  develop plans for meeting the new goals.
subsections: section_title: Certain Agencies Made Progress in Backlog Reduction, While Others Faced Challenges
paragraphs: Table 8 shows statistics provided by 16 agencies in response to our request  for numbers of overdue requests before and after the implementation of  the improvement plans. “After” statistics were as of September 14, 2007  (except as noted in the table). “Before” (baseline) statistics were generally  as of about June 2006. As the table shows, a few agencies provided  statistics on pending requests rather than overdue requests.
As shown in table 8, since implementing their FOIA improvement plans,  eight agencies showed significant decreases in their backlogs of overdue  cases (AID, DHS, EPA, Interior, Labor, the Nuclear Regulatory  Commission, the Treasury, and VA), and one (Energy) showed decreases  in pending requests (Energy does not distinguish overdue requests from  pending requests in its reduction efforts).
Because of the large numbers of pending and overdue requests that it  accounts for governmentwide, DHS’s reduction is particularly notable.  According to its statistics, DHS succeeded in reducing backlog by 29  percent since June 2006, reducing its overdue requests by almost 30,000.  DHS officials, including the Deputy Chief FOIA Officer, attributed the  department’s success to activities performed as part of its improvement  plan for both 2006 and 2007. For 2006, DHS’s improvement plan goals  related to backlog reduction included hiring additional personnel,  implementing operational improvements at CIS, meeting with an  important requester group (the American Immigration Lawyers  Association) to discuss file processing and customer service  enhancements, and establishing a monitoring program under which all  DHS components submitted weekly and monthly data to DHS’s Chief FOIA  Officer. Officials also cited improvements to the department’s Web site to  assist requesters in properly drafting and directing their requests;  increased outreach and assistance by the central FOIA office to  components; formalized employee training programs; and the launch of an  Internet-based FOIA correspondence tracking and case management  system for FOIA offices at DHS headquarters, which is to streamline the  tracking of requests. In addition, DHS’s Deputy Chief FOIA Officer told us  that she attributes the department’s progress to an increased focus on  customer service and communication with requesters, as well as efforts to  streamline FOIA processing using available technologies.
Also notable is VA’s performance: it reported achieving a backlog  reduction of over 80 percent from August 2006 to September 2007—a  reduction of 9,550 requests. This is also significant to the overall backlog  picture, as VA accounts for significant portions of governmentwide  requests received and pending (table 7 provides numbers for fiscal year  2006). VA attributed its backlog reduction to the improvements resulting  from meeting the milestones that it had set in its improvement plan and  the increased management emphasis on backlog reduction. VA’s 2006  improvement goals were to implement quarterly backlog snapshot  reporting for all components; analyze these snapshots to identify offices  with significant backlogs; identify the department’s 10 oldest FOIA  requests and estimated completion dates; and conduct FOIA site visits. In  its annual report, VA reported meeting these goals, as well as a number of  goals for 2007, including analysis of backlog and solutions.
Other agencies did not reduce their backlog of overdue or pending cases:  two agencies with minor backlog saw no material change, but five  agencies saw significant increases:    Commerce saw a minor increase in its backlog of 7 overdue requests, for a  total of 188 (Commerce generally receives about 2,000 FOIA requests a  year). According to Commerce’s Departmental FOIA Officer, the  department received a large number of voluminous requests in the period  before September 14, which she said was because of the election year, and  many of these requests were requests for congressional correspondence  and correspondence logs. According to this official, because such logs and  correspondence involve other agencies, such requests require external  consultation, which can be time-consuming. She also stated that the  department’s backlog of overdue requests varies from day to day, and that  by September 30, 2007, it had fallen to 159. For agencies such as  Commerce, whose processing rates have fluctuated closely around 100  percent (see fig. 7), such variations are not surprising.
NSF’s pending requests rose from 5 to 7 from its fiscal year 2006 report to  September 14, 2007; NSF processes around 250 to 350 requests per year.  As these numbers show, NSF does not face major backlog issues. Further,  when dealing with small numbers that can vary daily, a difference of 2  between snapshot dates does not provide a meaningful indication of a  trend.
SSA, State, and Defense saw rises in overdue requests, and NASA and  Education saw rises in pending requests:    Although SSA stated in its fiscal year 2006 annual report that it had  reduced its backlog by 5 percent, it experienced a rise in its backlog of  overdue requests by September 2007. SSA officials, including the Principal  Public FOIA Liaison, attribute this rise to difficulties in migration to a new  electronic FOIA tracking system, recent loss of experienced staff, and an  increase in complex requests in 2007. According to these officials, this  increase in requests occurred because of events that led to heightened  public interest, such as SSA field office closures. Although SSA is  expecting to lose more senior staff in 2007, officials hope to reduce  backlog by streamlining operations and careful management. For example,  according to agency FOIA officials, SSA is tasking junior-level personnel,  including administrative and office automation staff, with the  responsibility of responding to requests from frequent requesters seeking  routine statistical data, thus allowing senior analysts to work on more  complex requests.
According to FOIA officials at State’s Office of Information Programs and  Services, the department’s backlog of overdue requests increased because  of conflicting demands on the staff that coordinate and process FOIA  requests. For example, staff resources were redirected in response to a  department priority placed on passport processing. State also reported  that it experienced an increase in the number of congressional requests for  documents, the expedited processing of which often competes for the  same staff. According to the department, it plans to address its backlog  challenges by efforts to better track and control the FOIA workload.
Defense attributes most of the rise in its backlog of overdue requests to an  unforeseen influx of requests received by the Defense Security Service  (DSS). According to the chief of Defense’s Freedom of Information Policy  Office, DSS accounts for over 10,000 of Defense’s 23,255 backlogged  requests. This official told us that these requests are primarily Privacy Act  requests for background investigation files from individuals who were  investigated by DSS for security clearances over the past 15 years.  According to this official, the DSS backlog increased because, among  other things, personnel security investigation resources were transferred  from DSS to OPM when OPM assumed the personnel security investigation  mission in 2005; the increased security awareness within the country since  the events of September 11, 2001, caused more employers of former  Defense personnel to ask for security clearance information; and the war  in Iraq caused a significant increase in the use of cleared contractors for  critical positions. The chief of Defense’s Freedom of Information Policy  Office stated that the department plans to modify its FOIA improvement  plan to address this new backlog.
NASA saw an increase of more than 100 percent in pending requests from  February 2006 to September 14, 2007. According to NASA’s Chief FOIA  Public Liaison Officer, during this past fiscal year, it experienced an  unexpectedly large increase in FOIA workload because of high-visibility  incidents that led the public and media to increase their FOIA requests,  such as an incident involving an astronaut accused of attempted murder,  foam-related issues with the shuttle tanks, and contracts with NASA’s new  exploration vehicle. Most of these requests involve information that is  being considered under civil and criminal proceedings, operational safety  reviews, and internal controls; as a result, according to this official, they  required extensive legal reviews concerning the initial release  determinations.
Education experienced a 44 percent increase in pending requests from  June 2006 to September 14, 2007. Education’s improvement plan goals  included closing its 10 oldest requests by January 2007, as well as 10  percent of 480 requests that it identified as pending as of June 2006. In its  annual report, the department stated that it exceeded its 10 percent goal,  but that it did not close its 10 oldest requests because resources had been  reallocated to address other unplanned FOIA priorities and workload. In  addition, the Director of Regulatory Information Management Services in  the department’s Office of Management told us that the department has  experienced an increase in pending/backlog FOIA requests because of the  growing number of FOIA requests seeking responsive documents of a  cross-cutting nature, which require substantial time and attention from  senior personnel.
section_title: Variations in Statistics Tracked and Backlog Reduction Goals Prevent a Clear Assessment of Governmentwide Progress
paragraphs: Although the statistics provided by the 16 agencies indicate that many  agencies have made reductions, the governmentwide picture is not clear  because the types of statistics varied widely, representing both overdue  and pending cases and varying time frames. Further, 3 of the 21 agencies  were unable to provide statistics supporting their backlog reduction  efforts, and 1 provided statistics by component, which could not be  aggregated to provide an agencywide result.
Table 9 shows the variations in the dates of the baseline statistics for the  agencies. For agencies that provided the number of their overdue cases,  the dates generally depended on when the agencies first began to collect  such statistics. Some agencies had collected preimplementation backlog  numbers as a baseline for their improvement plans, and others planned to  determine backlog of overdue cases as part of the implementation of their  plans. For agencies that provided pending statistics, the dates generally  depended on the systems and processes used to develop the statistics.
Some agencies provided statistics on backlog of overdue requests, some  provided numbers of pending requests, and some provided a combination.  For the four agencies providing only pending statistics, the actual backlogs  of overdue requests would probably be lower, since overdue cases are a  subset of pending cases. Those providing pending statistics did so either  because their systems were not set up to track overdue requests, because  they chose not to distinguish them, or both. For example, according to  NASA, its current in-house FOIA database is designed to report statistics  only on open requests and does not distinguish those that are over the  statutory limit (20 or, in some cases, 30 days). Therefore, NASA provided  us numbers pertaining to all open requests. On the other hand, Education  and Energy chose not to distinguish between pending cases and those over  the statutory limit. Energy explained this decision on the grounds that it  ensured that all cases were given the same priority and that new cases  would receive just as efficient a response as old ones.
Two agencies (Justice and Defense) provided a mix of pending and  overdue statistics:    Justice reported by components, which provided a mix of pending and  overdue statistics, as well as baselines associated with dates ranging from  September 2005 to October 2006. Because of this mix, the statistics could  not be aggregated and directly compared to give a meaningful  departmentwide result. However, of 28 components, 13 reported  decreases in overdue or pending cases, 6 reported increases, 7 reported no  overdue requests, 1 was a new component that had no preimplementation  history, and 1 component did not provide statistics for the time frames  requested.
According to Defense, it had not previously tracked backlog in the sense  of the Executive Order (that is, overdue requests), and it planned to use  the September 2007 statistics collected for us as a baseline for future  tracking.
Similarly, the Department of the Interior could not provide us with a  preimplementation baseline because it did not track its backlog of overdue  requests at that time. Interior told us that it has now modified its tracking  system to allow it to monitor overdue cases in real time.
Table 10 shows the four agencies for which information was not provided  or was not sufficient for a clear conclusion. (The remaining agency, SBA,  did not report a backlog for either June 2006 or September 2007.)
Three agencies did not provide any statistics. Transportation and HHS,  both of which have decentralized FOIA programs, told us that collecting  and providing such statistics was not feasible. Transportation stated that it  would have been extremely burdensome to do so because its operating  administrations are set up to capture open requests and not overdue  requests. Similarly, HHS officials told us that the decentralized nature of  the department’s FOIA operations and the manual processes that are used  to compile statistics made it impractical to compile the requested data.
One agency, OPM, did not provide a baseline statistic. It reported 152  overdue requests as of September 2007, but without a baseline, no  conclusion on its progress is possible. According to OPM, because it did  not establish a numerical goal for backlog reduction (its goal was to  eliminate its backlog of overdue requests), it did not record the number of  overdue requests as a baseline before implementing its improvement plan.
A major reason for this variation in statistics is that agencies did not  necessarily have systems or processes to record backlog in the sense of  the Executive Order (requests for records that have not been responded to  within the statutory time limit); instead, their systems or processes were  based on recording statistics required for the annual reports, which  include a count of open requests pending at the end of the reporting period  but do not include backlog of overdue requests. This challenge is  compounded for agencies with highly decentralized programs or manual  processes, for which assembling the statistics, even if they were available,  is a significant task.
In addition, the goals that agencies set regarding backlog reduction varied  widely. In our March 2007 report, we noted that almost all plans contained  measurable goals and timetables for avoiding or reducing backlog.  However, the goals concentrated on a wide variety of targets and metrics.  For example, some goals and milestones were focused on activities that  could be expected to reduce backlog by contributing to efficiency, such as  conducting reviews, setting up monitoring mechanisms, hiring staff,  conducting training, and making other process improvements. Others  were numerical goals aimed at particular metrics, such as reducing  processing time; completing a certain percentage of requests within 20  days; reducing the number of some subset of requests (such as the 10  oldest cases, those over a year old, cases opened before a particular date,  or cases at particular components); or reducing the number of pending or  overdue requests by a certain percentage, to a certain number, or to a  certain proportion of requests received per year. The goals also covered a  variety of time frames, so that not all agencies set numerical goals for the  first reporting period (which ended about 7 months after they began  implementing their improvement plans), but instead set only process  goals.
The reason for this variety of goals and milestones is that Justice’s  guidance on implementing the Executive Order gave agencies broad  flexibility in designing their plans. This guidance emphasized that  identifying ways to eliminate or reduce backlog should be a major  underpinning of the implementation plans of all agencies that had  backlogs. However, the guidance allowed agencies to develop goals that  they considered most appropriate in light of their current FOIA operations;  it did not prescribe any particular metric for all agencies to use. According  to the Director of Justice’s Office of Information and Privacy, the guidance  was intended to provide flexibility to agencies in developing appropriate  measurements that best fit their individual circumstances. As a result, the  goals and milestones set by agencies included a wide variety of different  aims and measures.
In recent guidance issued to implement the Attorney General’s  recommendations for improving FOIA implementation, Justice directed  agencies to develop backlog reduction goals for fiscal years 2008 to 2010.  The guidance directs agencies to estimate the number of requests they  expect to receive during each fiscal year and to set goals both for the  number of requests they intend to process and for the number of requests  pending beyond the statutory limit (backlog) at the end of each fiscal  year. According to the Director of Justice’s Office of Information and  Privacy, this guidance was aimed at ensuring the continuation of the  improvement process begun by the Executive Order. This guidance  continues the flexible approach set in earlier guidance, in that it gives  agencies freedom to set goals that they consider appropriate and realistic  to their own circumstances.
The Director of the Office of Information and Privacy also stated that by  directing agencies to establish these goals, the office intended to establish  a core definition for what is being tracked and to encourage agencies to  begin focusing on this metric. However, the guidance does not direct  agencies to modify their existing improvement plans or to otherwise  develop strategies, plans, or milestones to achieve these new goals, which  are in addition to the specific goals set in their improvement plans. The  guidance also does not direct agencies to track and report the actual  number of requests pending beyond the statutory limit. Without such  planning and tracking, agencies may face challenges in achieving the  reductions envisioned. Neither the public nor the agencies could  effectively monitor progress unless agencies put in place processes and  systems that allow them to track and report their backlogs of overdue  requests.
section_title: Conclusions
paragraphs: The annual FOIA reports continue to provide valuable information about  the public’s use of this important tool to obtain information about the  operations and decisions of the federal government. However, the value of  this information depends on its accuracy. In some cases, agencies were  not able to provide assurance that their information was accurate and  complete. It is important for agencies to ensure that they have appropriate  procedures and internal controls, so that agencies and the public have  reasonable assurance that FOIA data are reliable.
Some of the challenges that agencies face in processing FOIA requests  include the need to review and redact sometimes large volumes of  responsive records, to consult with other agencies or confer with multiple  organizations, and to provide predisclosure notifications to information  submitters. These practical challenges provide some insight into the  reasons why backlogs can develop and grow, as well as an appreciation of  the need for sustained attention to ensure that backlogs do not become  unmanageable. For example, in one agency component, the pressure to  avoid litigation, while ensuring that some newer requests were responded  to promptly, led to a situation in which very old cases may remain open  indefinitely. Establishing goals and time frames to close such cases could  help avoid this result. The challenge to agency management is to  determine how to apply finite resources to respond to the multiple and  sometimes competing demands placed on their FOIA programs.
The progress that many agencies have made in reducing backlog suggests  that the development and implementation of the FOIA improvement plans  have had a positive effect. However, in the absence of consistent statistics  on overdue cases, it is not possible to make a full assessment of  governmentwide progress in this area. Justice’s latest guidance on setting  backlog reduction goals is a step toward developing such statistics,  although it does not explicitly ask agencies to track and report them.  However, on the principle that “what gets measured gets managed,” the  chances of agency success in achieving reductions could be increased if  they monitor and report statistics on their backlog of overdue requests, as  well as develop plans for achieving their goals. Such reporting would  further the aim of the statute and the Executive Order to inform citizens  about the operations of their government and the FOIA program in  particular.
section_title: Recommendations for Executive Action
paragraphs: To help ensure that FOIA data in the annual reports are reliable, we are  recommending that the Administrator of General Services ensure that  appropriate internal controls are put in place to improve the accuracy and  reliability of FOIA data, including processes, such as checks and reviews,  to verify that required data are entered correctly.
To help ensure that FOIA data are reliable, we are recommending that the  Secretary of Housing and Urban Development ensure that appropriate  policies and procedures are put in place to improve the accuracy and  reliability of FOIA data, including procedures to ensure that all FOIA  offices use tracking systems consistently and that information is entered  accurately and promptly.
We previously made a recommendation to the Department of Agriculture  regarding the reliability of FOIA data at the Farm Service Agency; we are  making no further recommendations at this time because the department  has improvement efforts ongoing that, if implemented effectively, should  help ensure that required data are entered correctly.
We are also recommending that the Attorney General take the following  actions:    To help ensure that its oldest requests receive appropriate attention, direct  the Criminal Division to establish goals and time frames for closing its  oldest requests, including those over 6 years old.
To help agencies achieve the backlog reduction goals planned for fiscal  years 2008, 2009, and 2010 and to ensure that comparable statistics on  backlog are available governmentwide, direct the Office of Information  and Privacy to provide additional guidance to agencies on (1) developing  plans or modifying existing plans to achieve these goals and (2) tracking  and reporting backlog.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to OMB and the 24 agencies included in  our analysis for review and comment. All generally agreed with our  assessment and recommendations or had no comment. Seven agencies  provided written comments: AID, Energy, EPA, GSA, Homeland Security,  Justice, and OPM (printed in apps. III through IX). The Department of  Veterans Affairs provided comments by e-mail. In addition, the  Departments of Commerce, Defense, the Interior, Justice, and State  provided technical comments by e-mail or letter, which we incorporated  as appropriate.
In written comments from the Department of Justice, the Director of  Justice’s Office of Information and Privacy provided additional  information on its planned actions related to our recommendations (see  app. VIII), and in later contacts, the department confirmed that it generally  agreed with our findings and recommendations. The Director described  actions that the department has taken to help agencies achieve the  backlog reduction goals planned for fiscal years 2008, 2009, and 2010. The  Director also stated that Justice intends to issue further guidance to  agencies, which will encourage agencies both to ensure appropriate  planning to meet their backlog reduction goals and to reduce the age of  their oldest requests, as well as provide additional requirements for  reporting on backlogged requests.
In addition, the Director provided information on actions that the Criminal  Division has taken to ensure that the oldest requests receive appropriate  attention. She stated that her office has been advised by the FOIA Office of  the Criminal Division that it has established goals and time frames for  closing its oldest requests and that the likelihood of litigation is no longer  a consideration for prioritizing requests older than 6 years (see app. VIII).
The Administrator of General Services concurred with our findings and  recommendations and stated that the administration has developed and  implemented an automated tracking system, providing it with internal  control of the data. In addition, the Administrator stated that GSA had  increased the FOIA staff, resulting in more checks and reviews to verify  that data are entered correctly (see app. VI).
Three agencies provided written comments describing additional actions  taken in regard to overdue requests:    The Director of the Department of Homeland Security’s GAO/OIG Liaison  Office concurred with our findings and recommendations and described  actions taken by the department to continue to decrease the number of  overdue requests, actions taken by CIS to expedite FOIA processing, and  the priority given to departmentwide guidance (see app. VII).
The Assistant Administrator and Chief Information Officer of the  Environmental Protection Agency described actions that the department  has taken to ensure that it continues to decrease the number of its overdue  requests (see app. V).
The Director of the Office of Personnel Management stated that the office  did not dispute our statement that it had not established a backlog  baseline, and added that since the audit was completed it has established  backlog reduction goals and determined a baseline for overdue requests  (see app. IX).
Two agencies provided written comments agreeing with the information  presented on their FOIA programs:    For the Department of Energy, the Director of the Office of  Management/Chief Freedom of Information Officer provided comments  (see app. IV).
For the Agency for International Development, the Assistant Administrator  of the Bureau for Management provided comments (see app. III).
Finally, the GAO Liaison of the Department of Veterans Affairs provided e- mail comments agreeing with the information presented on the  department’s FOIA program.
As agreed with your office, unless you publicly announce the contents of  this report earlier, we plan no further distribution of this report until 30  days from the date of this report. At that time, we will send copies of this  report to the Attorney General, the Director of the Office of Management  and Budget, and the heads of departments and agencies we reviewed.  Copies will be made available to others on request. In addition, this report  will be available at no charge on our Web site at www.gao.gov.
If you or your staff have questions about this report, please contact me at  (202) 512-6240 or koontzl@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made major contributions to this report are  listed in appendix X.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: Our objectives were to (1) determine the status of agencies’ processing of  Freedom of Information Act (FOIA) requests and any trends that can be  seen, (2) describe factors that contribute to FOIA requests remaining open  beyond the statutory limits, and (3) determine to what extent agencies  have made progress in addressing their backlogs of overdue FOIA requests  since implementing their improvement plans.
To determine the status of agencies’ processing of FOIA requests and any  trends, we analyzed annual report data for fiscal years 2002 through 2006.  Our intended scope was the 24 agencies covered by the Chief Financial  Officers Act, plus the Central Intelligence Agency (herein we refer to this  scope as governmentwide). To gauge agencies’ progress in processing  requests, we analyzed the workload data (from fiscal year 2002 through  2006) included in the 25 agencies’ annual FOIA reports to assess trends in  volume of requests received and processed, median processing times, and  the number of pending cases. All agency workload data were self-reported  in annual reports submitted to the Attorney General.
To provide assurance that the data reported in the annual reports were  reliable, we interviewed officials from selected agencies and assessed the  internal controls that agencies had in place for ensuring that their data  were complete and accurate. Our strategy for assessing data reliability was  to assess agencies on a 3-year rotational basis. In both fiscal year 2006 and  fiscal year 2007, we selected the Social Security Administration and the  Department of Veterans Affairs for assessment because they processed a  majority of the requests governmentwide, as well as eight additional  agencies. To ensure that we selected agencies of varying size, we ordered  the remaining agencies according to the number of requests they received  (from smallest to largest) and divided the resulting list into sets of three;  we assessed the first member of each set last year and the second of each  set this year.
This year, in addition to the Social Security Administration and the  Department of Veterans Affairs, the following agencies were selected for  assessment: the Departments of Homeland Security, Housing and Urban  Development, Justice, and Transportation, as well as the Agency for  International Development, the Central Intelligence Agency, the  Environmental Protection Agency, and the General Services  Administration. We also chose to revisit the Department of Agriculture,  which we assessed last year, because we had determined that we could  not be assured that data from a component, the Farm Service Agency,  were accurate and complete. Thus, we planned to assess a total of 11  agencies in fiscal year 2006. We performed assessments at 10 of these  agencies; we did not assess the Central Intelligence Agency because it did  not provide information in response to our requests.
As a result of these assessment efforts, we omitted 4 of the 25 agencies  from our analysis: the Central Intelligence Agency, the General Services  Administration, and the Departments of Agriculture and Housing and  Urban Development. We eliminated the Central Intelligence Agency,  because without its participation, we were unable to determine whether it  had internal controls ensuring that its data were accurate and complete.  We eliminated the General Services Administration and the Departments  of Agriculture and Housing and Urban Development because they did not  provide evidence of internal controls that would provide reasonable  assurance that FOIA data were recorded completely and accurately, or  they acknowledged material limitations of the data. As a result, our  statistical analysis for this report was based on data from a total of 21  agencies’ annual reports. Table 11 shows the 25 agencies and their  reliability assessment status.
To describe factors that contribute to FOIA requests remaining open  beyond the statutory limits, we analyzed case files for the 10 oldest  pending requests at selected agencies and discussed these cases and the  reasons they remained open with agency officials. We also interviewed  agency officials regarding the factors they considered most relevant for  their agencies.
To determine to what extent agencies made progress in addressing  backlogged FOIA requests since implementing their improvement plans,  we analyzed the improvement plan progress reports included in the fiscal  year 2006 annual reports of the 21 major agencies whose internal controls  we evaluated as sufficient in order to determine whether the agencies met  their 2006 backlog reduction milestones. In order to determine whether  agencies made a reduction or an increase in backlogged cases, we  analyzed statistics provided by the agencies on their backlogs at different  points in time. We discussed the information in the progress reports and  backlog statistics with agency officials to determine their views on the  reasons for backlog increases or decreases, as well as their progress on  their improvement plans.
In addition, we reviewed the requirements for reporting progress  contained in the Executive Order, implementation guidance from the  Office of Management and Budget and the Department of Justice, other  FOIA guidance issued by Justice, and our past work in this area.
We conducted this performance audit from May 2007 to March 2008 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.
section_title: Appendix II: Freedom of Information Act Exemptions
paragraphs: The act prescribes nine specific categories of information that are exempt  from disclosure.
Matters that are exempt from FOIA  (A) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest  of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive  Order.
Related solely to the internal personnel rules and practices of an agency.
Specifically exempted from disclosure by statute (other than section 552b of this title), provided that such  statute (A) requires that matters be withheld from the public in such a manner as to leave no discretion on  the issue or (B) establishes particular criteria for withholding or refers to particular types of matters to be  withheld.
Trade secrets and commercial or financial information obtained from a person and privileged or  confidential.
Interagency or intra-agency memorandums or letters which would not be available by law to a party other  than an agency in litigation with the agency.
Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted  invasion of personal privacy.
Records or information compiled for law enforcement purposes, but only to the extent that the production  of such law enforcement records or information  could reasonably be expected to interfere with enforcement proceedings;  would deprive a person of a right to a fair trial or impartial adjudication;  could reasonably be expected to constitute an unwarranted invasion of personal privacy;  could reasonably be expected to disclose the identity of a confidential source, including a state, local, or  foreign agency or authority or any private institution which furnished information on a confidential basis,  and, in the case of a record or information compiled by a criminal law enforcement authority in the course  of a criminal investigation or by an agency conducting a lawful national security intelligence investigation,  information furnished by confidential source;  would disclose techniques and procedures for law enforcement investigations or prosecutions, or would  disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably  be expected to risk circumvention of the law; or   could reasonably be expected to endanger the life or physical safety of an individual.
Contained in or related to examination, operating, or condition of reports prepared by, on behalf of, or for  the use of an agency responsible for the regulation of supervision of financial institutions.
Geological and geophysical information and data, including maps, concerning wells.
section_title: Appendix III: Comments from the Agency for International Development
section_title: Appendix IV: Comments from the Department of Energy
section_title: Appendix V: Comments from the Environmental Protection Agency
section_title: Appendix VI: Comments from the General Services Administration
section_title: Appendix VII: Comments from the Department of Homeland Security
section_title: Appendix VIII: Comments from the Department of Justice
section_title: Appendix IX: Comments from the Office of Personnel Management
section_title: Appendix X: GAO Contact and Staff Acknowledgments
subsections: section_title: Acknowledgments
paragraphs: In addition to the contact named above, key contributions to this report  were made by Ashley Brooks, Barbara Collier, Eric Costello, Marisol Cruz,  Wilfred Holloway, David Plocher, Kelly Shaw, and Elizabeth Zhao.