Freedom of Information Act: Preliminary Analysis of Processing Trends Shows Importance of Improvement Plans
Published: 2006-07-26T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Freedom of Information Act (FOIA) establishes that federal agencies must provide the public with access to government information, thus enabling them to learn about government operations and decisions. To help ensure appropriate implementation, the act requires that agencies report annually to the Attorney General, providing specific information about their FOIA operations. In addition, a recent Executive Order directs agencies to develop plans to improve their FOIA operations, including, among other things, goals to reduce backlogs in FOIA requests. GAO has reported previously on the contents of these annual reports for 25 major agencies. For this hearing, GAO was asked to testify both on the annual reports for fiscal year 2005 and on the recently developed improvement plans for these 25 agencies. GAO based its testimony on its ongoing work on these topics. Upon completion of its ongoing review, GAO expects to make recommendations to improve agency implementation of the Executive Order, including efforts to reduce and eliminate backlog.
section_title: What GAO Found
paragraphs: According to data reported by agencies in their annual reports, the public continues to request and receive increasing amounts of information from the federal government through FOIA; however, excepting one case--the Social Security Administration (SSA)--the rate of increase has flattened in recent years. (SSA reported an additional 16 million requests in 2005, dwarfing those for all other agencies combined, which together total about 2.6 million; SSA attributed this rise to an improvement in its method of counting requests. However, Justice officials have suggested that SSA consider treating the bulk of these requests as non-FOIA requests and thus not include them in future reports.) When SSA's numbers are excluded, data reported by the other 24 major agencies show that the number of requests received increased by 27 percent from fiscal year 2002 to 2005, but by only about 2.5 percent from fiscal year 2004. As more requests come in, agencies also report that they have been processing more of them--25 percent more from 2002 to 2005 (but only about 2.0 percent more than from 2004). Despite processing more requests, agencies have not kept up with the increase in requests being made: the number of pending requests carried over from year to year has been steadily increasing, rising to about 200,000 in fiscal year 2005--43 percent more than in 2002. The rate of increase in requests pending is also growing: the increase from fiscal year 2004 to 2005 is 24 percent, compared to 11 percent from 2003 to 2004. Most of the agency improvement plans discussed reducing backlog, but not all consistently followed the Executive Order or implementing guidance provided by the Justice Department. Of the 25 agencies, 3 had not posted their plans in time to be included in this testimony, and 1 reported no backlog. Of the remaining 21 agencies, 12 followed the Executive Order's instruction to establish measurable, outcome-oriented objectives for reducing or eliminating their backlogs, as well as timetables with milestones for meeting these objectives. Nine agencies did not do this, although they accounted for a substantial fraction--about 29 percent--of the requests reported to be pending at the end of fiscal year 2005. (Most agencies did provide goals and timetables for other kinds of objectives, however, such as performing staffing analyses and reviewing progress.) In addition, agencies generally did not specify the dates or numbers they were using as the baselines for their existing backlogs, which will be important for measuring improvement. GAO's ongoing work suggests that factors contributing to these deficiencies include difficulties in coordinating responses among components in large, decentralized agencies and limitations in the systems that track FOIA processing. In addition, neither the Executive Order nor Justice guidance established a baseline date for measuring the backlog or directed agencies to establish such a date. Without clearly defined baselines, specific objectives, and timetables for reducing backlog, it could be challenging for agency heads, Justice, and the Congress to gauge progress in improving FOIA processes as intended by the Executive Order.

section_title: Letter
paragraphs: I appreciate the opportunity to participate in the Subcommittee’s  hearing on the implementation of the Freedom of Information Act  (FOIA). Generally speaking, FOIA establishes that federal agencies  must provide the public with access to government information,  thus enabling them to learn about government operations and  decisions. Specific requests by the public for information through  the act have led to disclosure of waste, fraud, abuse, and  wrongdoing in the government, as well as the identification of  unsafe consumer products, harmful drugs, and serious health  hazards.
To help ensure appropriate implementation, the act requires that  agencies provide annual reports on their FOIA operations to the  Attorney General, including specific information such as how many  requests were received and processed in the previous fiscal year and  how many requests were pending at the end of the year. In addition,  the President issued an Executive Order in December 2005 that is  aimed at improving agencies’ disclosure of information consistent  with FOIA. Among other things, this order requires 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) that summarizes the results of the agency’s review and  includes a copy of its improvement plan. These plans are to include  specific outcome-oriented goals and timetables, by which the  agency head is to evaluate the agency’s success in implementing the  plan. The Executive Order specifically requires that these plans  address ways to eliminate or reduce any backlog of FOIA requests.
As requested, in my remarks today, I will discuss two topics, basing  my discussion on ongoing work that we are performing for the  Subcommittee: (1) statistics on the processing of FOIA requests as  reflected in agencies’ 2005 annual reports, highlighting any trends in  these reports since 2002, and (2) to what extent agencies addressed  the Executive Order’s requirement to provide measurable, outcome- oriented goals to reduce or eliminate backlog, along with timetables  that include milestones for these goals.
To describe statistics on the processing of FOIA requests, we  analyzed annual report data for fiscal years 2002 through 2005 from  25 major agencies (herein we refer to this scope as  governmentwide). To describe how agency improvement plans  addressed the order’s requirements regarding goals and timetables  to address backlog, we analyzed the 22 agencies’ plans that were  published as of June 30, 2006, to determine whether they contained  descriptions of activities to reduce backlog, along with goals and  timetables that could be used to evaluate progress. We also  reviewed the Executive Order itself, implementing guidance issued  by OMB and the Department of Justice, other FOIA guidance issued  by Justice, and our past work in this area. Three agencies, the  Departments of State and Homeland Security and the Agency for  International Development, had not published their plans by June  30, and thus we could not analyze them for this hearing. These three  agencies have since provided their plans. We discussed the content  of this statement with officials of the Department of Justice,  including the Director of the Office of Information and Privacy.
We conducted our review in accordance with generally accepted  government auditing standards, except that we did not verify the  accuracy and reliability of the data in agencies’ annual reports in  time to be included in this testimony. As a result, our findings on the  status of FOIA implementation as reflected in agencies’ annual  reports are preliminary and may change when we complete our  assessment of data reliability. We performed our work from April to  July 2006.
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,”  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 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 (attachment 1 provides the 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  business days from receipt of the request). Congress did not  establish a statutory deadline for making releasable records  available, but instead required agencies to make them available  promptly.
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 then given a final  review, possibly by the agency’s general counsel, and then a  response letter is generated, summarizing the agency’s actions  regarding the request. Finally, the responsive records are released to  the requester.
Some requests are relatively simple to process, such as requests for  specific pieces of information that the requester sends directly to  the appropriate office. Other requests may require more extensive  processing, depending on their complexity, the volume of  information involved, the need for the agency FOIA office to work  with offices that have relevant subject-matter expertise to find and  obtain information, the need for a FOIA officer to review and redact  information in the responsive material, the need to communicate  with the requester about the scope of the request, and the need to  communicate with the requester about the fees that will be charged  for fulfilling the request (or whether fees will be waived).
Specific details of agency processes for handling requests vary,  depending on the agency’s organizational structure and the  complexity of the requests received. While some agencies centralize  processing in one main office, other agencies have separate FOIA  offices for each agency component and field office. Agencies also  vary in how they allow requests to be made. Depending on the  agency, requesters can submit requests by telephone, fax, letter, or  e-mail or through the Web. In addition, agencies may process  requests in two ways, known as “multitrack” and “single track.”  Multitrack processing involves dividing requests into two groups:  (1) simple requests requiring relatively minimal review, which are  placed in one processing track, and (2) more voluminous and  complex requests, which are placed in another track. In contrast,  single-track processing does not distinguish between simple and  complex requests. With single-track processing, agencies process all  requests on a first-in/first-out basis. Agencies can also process FOIA  requests on an expedited basis when a requester has shown a  compelling need or urgency for the information.
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 from disclosing records. 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,  the Department of 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 FOIA and the Privacy Act can both apply to first-party  requests, such requests are not in many cases processed in the same  way as described earlier for FOIA requests. For example, most SSA  first-party requests are processed by staff other than FOIA staff,  specifically, staff in SSA’s field and district offices and teleservice  centers.
section_title: Roles of OMB and Justice in FOIA Implementation
paragraphs: OMB and the Department of Justice both have roles in the  implementation of FOIA. The act 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 Congress as to their availability;  in consultation with OMB, develop guidelines for the required  annual agency reports, so that all reports use common terminology  and follow a similar format; and  ●  submit an annual report on FOIA statistics and the efforts  undertaken by Justice to encourage agency compliance.
Within the Department of Justice, the Office of Information and  Privacy 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 as well as on compliance, provides training, and  maintains a counselors service to provide expert, one-on-one  assistance to agency FOIA staff. Further, the Office of Information  and Privacy also makes a variety of FOIA and Privacy Act resources  available to agencies and the public via the Justice Web site and on- line bulletins.
section_title: 1996 Amendments Established Annual FOIA Reports
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;  ●  median number of days taken by the agency to process different  ●  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 on line at a single electronic access point and  report to Congress no later than April 1 of each year that these  reports are available in electronic form.
In 2001, we prepared the first in a series of reports on the  implementation of the 1996 amendments to FOIA, starting from  fiscal year 1999. In this and subsequent reviews, we examined the  contents of these 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 the Department of Homeland  Security (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 are reflected in  all the years reviewed.
section_title: Increases in Requests Are Slowing, but Pending Cases Are Increasing
paragraphs: The annual FOIA reports for fiscal year 2005 show that many of the  trends of previous years are continuing: Requests received and  processed continue to rise; however, excepting one case—SSA—the  rate of increase has flattened in recent years. We present SSA’s  statistics separately because the agency reported an additional 16  million requests in 2005, dwarfing those for all other agencies  combined, which together total about 2.6 million. SSA attributed this  rise to an improvement in its method of counting requests. Justice  officials have raised questions about the inclusion of these numbers  in FOIA statistics.
Figure 2 shows total requests reported governmentwide for fiscal  years 2002 through 2005, with SSA’s share shown separately. This  figure shows the magnitude of SSA’s contribution to the whole FOIA  picture, as well as the scale of the jump from 2004 to 2005.
Figure 3 presents these statistics 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: from fiscal year 2002 to 2005, requests received increased  by about 27 percent, and requests processed increased by about 25  percent. From fiscal year 2004 to 2005, requests received increased  about 2.5 percent, and requests processed increased about 2.0  percent.
According to SSA, the increases that the agency reported in fiscal  year 2005 can be attributed to an improvement in its method of  counting a category of requests it calls “simple requests handled by  non-FOIA staff.” In the past 4 years, SSA’s FOIA reports have  consistently shown significant growth in this category, which has  accounted for the major portion of all SSA requests reported (see  table 3). In each of these years, SSA has attributed the increases in  this category largely to better reporting, as well as actual increases  in requests.
SSA describes requests in this category as typically being requests  by individuals for access to their own records, or else 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,  disability insurance, and so on. According to SSA’s FOIA report,  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. SSA has stated that it does not keep  processing statistics (such as median days to process) on these  requests, which it reports separately from other FOIA requests (for  which processing statistics are kept).
According to SSA, in fiscal year 2005, the agency began to use  automated systems to capture the numbers of requests processed by  non-FOIA staff, generating statistics automatically as requests were  processed; the result, according to SSA, is a much more accurate  count. However, Justice officials have suggested that SSA consider  treating the bulk of these requests as non-FOIA requests and thus  not include them in future reports.
Besides SSA, agencies reporting large numbers of requests received  were the Departments of Agriculture, Defense, Health and Human  Services, Homeland Security, Justice, the Treasury, and Veterans  Affairs, as shown in table 4. The rest of the agencies combined  account for only about 3 percent of the total requests received (if  SSA is 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).
subsections: section_title: Most Requests Are Granted in Full
paragraphs: Most FOIA requests in 2005 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. However, including SSA’s numbers in the  proportion of grants overwhelms 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.
Four of the eight agencies that handled the largest numbers of  requests (HHS, SSA, USDA, and VA; see table 4) also granted the  largest percentages of requests in full, as shown in figure 4. This  figure shows, by agency, the disposition of requests processed: that  is, whether granted in full, partially granted, denied, or not disclosed  for the “other” reasons shown in table 1.
As the figure shows, the numbers of fully granted requests varied  widely among agencies in fiscal year 2005. Seven agencies made full  grants of requested records in over 80 percent of the cases they  processed (besides the four already mentioned, these include DOE,  OPM, and SBA). In contrast, 13 of 25 made full grants of requested  records in less than 40 percent of their cases, including  3 agencies  (CIA, NSF, and State) that made full grants in less than 20 percent of  cases processed.
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 they are requests for personal  information about individuals that are routinely made available to or  for the individuals concerned. Similarly, VA routinely makes medical  records available to individual veterans.
section_title: Processing Times Vary
paragraphs: For 2005, the reported time required to process requests (by track)  varied considerably among agencies. Table 6 presents data on  median processing times for fiscal year 2005. 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, eight agencies had components that reported  processing simple requests in less than 10 days (these components  are part of the CIA, Energy, the Interior, Justice, Labor,  Transportation, the Treasury, and USDA); for each of these  agencies, the lower value of the reported ranges is less than 10. On  the other hand, median time to process simple requests is relatively  long at some organizations (for example, components of HHS,  Justice, and USDA, as shown by median ranges whose upper end  values are greater than 100 days).
For complex requests, the picture is similarly mixed. Components of  four agencies (EPA, DHS, 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, EPA, HHS, HUD, Justice, State, Transportation, the  Treasury, and USDA) reported relatively long median times to  process complex requests, with median days greater than 100.
Six agencies (AID, HHS, NSF, OPM, SBA, and SSA) reported using  single-track processing. The median processing times for single- track processing varied from 5 days (at an HHS component) to 173  days (at another HHS component).
The changes from fiscal year 2004 to 2005 also vary. For agencies  that reported agencywide figures, table 7 shows how many showed  increased or decreased median processing times. Table 8 shows  these numbers for the components that were reported separately.
These tables show that no one pattern emerges across tracks and  types of reporting, and the numbers of agencies and components  involved vary from track to track. The picture that emerges is of  great variation according to circumstances.
To allow more insight into the variations in median processing  times, we provide in attachment 2 tables of median processing times  as reported by agencies and components in the annual FOIA reports  in fiscal years 2004 and 2005. This attachment also includes  information on the number of requests reported by the agencies and  components, which provides context for assessing the median times  reported.
section_title: Agency Pending Cases Continue to Increase
paragraphs: In addition to processing greater numbers of requests, many  agencies (11 of 25) also reported that their numbers of pending  cases—requests carried over from one year to the next—have  increased since 2002. In 2002, pending requests governmentwide  were reported to number about 140,000, whereas in 2005, about  200,000—43 percent more—were reported. In addition, the rate of  increase grew in fiscal year 2005, rising 24 percent from fiscal year  2004, compared to 11 percent from 2003 to 2004. Figure 5 shows  these results, illustrating the accelerating rate at which pending  cases have been increasing.
These statistics include pending cases reported by SSA, because as  the figure shows, these pending cases do not change the  governmentwide picture significantly. As previously discussed,  SSA’s pending cases do not include simple requests handled by non- FOIA staff, for which SSA does not keep these statistics.
Trends for individual agencies show mixed progress in reducing the  number of pending requests reported from 2002 to 2005—some  agencies have decreased numbers of pending cases, while others’  numbers have increased. Figure 6 shows processing rates at the 25  agencies (that is, the number of requests that an agency processes  relative to the number it receives). Eight of the 25 agencies (AID,  DHS, the Interior, Education, HHS, HUD, NSF, and OPM) reported  processing fewer requests than they received each year for fiscal  years 2003, 2004, and 2005; 8 additional agencies processed less than  they received in two of these three years.
In contrast, two agencies (CIA and DOE) had processing rates above  100 percent in all three years, meaning that each made continued  progress in reducing their numbers of pending cases. Fifteen  additional agencies were able to make at least a small reduction in  their numbers of pending requests in 1 or more years between fiscal  years 2003 and 2005.
section_title: About Half of FOIA Improvement Plans Do Not Include Goals and Timetables for Reducing the Backlog
paragraphs: The Executive Order, with its requirement for agencies to develop  FOIA improvement plans, serves to focus agency managers’  attention on the important role that FOIA plays in keeping citizens  well informed about the operations of their government. By  requiring measurable goals and timetables, the Executive Order  provides for a results-oriented framework by which agency heads  can hold officials accountable for improvements in FOIA  processing. Further, the Department of Justice’s guidance on  implementing the order provides several tangible suggestions for  improving FOIA operations.
The Executive Order states that each agency shall develop an  improvement plan by June 14, 2006, that includes measurable,  outcome-oriented goals to reduce or eliminate backlog, along with  timetables that include milestones for these goals. According to this  guidance, the goals and milestones in agency plans should focus on  outcomes that are measurable and demonstrate whether or not  intended results are being achieved. Justice’s implementation  guidance directs agencies to include “means of measurement of  success (e.g., quantitative assessment of backlog reduction  expressed in numbers of pending requests, percentages, or working  days)” and provides agencies considerable leeway in choosing  measures of timeliness.
Most of the 22 agency plans available as of June 30 discussed  reducing backlog, but not all consistently followed the Executive  Order directions by establishing goals and timetables for reducing or  eliminating their backlog. In all, 12 of the 21 agencies that reported a  backlog included such goals and timetables, but the remaining 9 did  not do so. (The Small Business Administration did not report a  backlog.) These 9 agencies accounted for about 29 percent of the  almost 200,000 requests pending at the end of fiscal year 2005 that  were reported in the annual FOIA reports.
Table 9 summarizes the results of our analysis.
As table 9 shows, 13 agencies included goals, but 1 of these (SSA)  did not include a timetable associated with its goal.
The goals chosen by the 13 agencies varied. For example, OPM’s  plan set a goal of reducing and eliminating the agency’s backlog by  December 31, 2006. EPA’s goal was to reduce its response backlog  to less than 10 percent of the number of new FOIA requests received  each year. Several agencies set goals to reduce backlog to various  percentages of their current backlog (for example, the CIA, Energy,  the Interior, Justice, and the Treasury). HUD set an absolute goal of  fewer than 400 pending requests.
Although the remaining 8 agency plans discussed efforts to improve  FOIA processing, they did not contain goals for backlog reduction.  In two cases (GSA and NASA), agencies did not include such goals  because they did not include backlog reduction among the areas of  improvement on which they planned to focus. These agencies did  not consider their backlogs significant; nonetheless, the Executive  Order specifically instructed agencies to include goals and  timetables to address backlog.
In other cases, agencies did address backlog reduction but did not  define goals. Many of these agencies did define process goals, such  as establishing means to monitor and report on backlog, reviewing  current processes, and identifying and reviewing tracking systems,  but these were not accompanied by goals for backlog reduction:   ●  For example, the Department of Commerce’s plan stated that, to the  extent possible, its components would use current backlog numbers  as a ceiling (these generally range from 9 to 13 percent of the  workload) and work aggressively to reduce these numbers, focusing  particularly on the 10 oldest requests in each component’s backlog.  However, although the plan provided milestone dates for FOIA  officers to review progress in this area and assess any need to  pursue alternatives (such as contract support) for achieving goals,  the plan did not provide measurable targets for assessing success,  such as percentage of reduction.   ●  Similarly, the Department of Defense set various process goals  (identifying those FOIA Offices with backlogs greater than 50 cases,  determining the staffing levels required to significantly reduce the  backlog, and seeking the necessary funding to provide this  additional staffing). However, it provided no measurable targets for  reducing backlog.
In the timetables that agencies provided in their plans, 12 agencies  provided milestones for goals that they had identified. As mentioned  earlier, one agency (SSA) did not include a milestone for its goal of  eliminating backlog. SSA provided instead a timetable that  addressed process goals: reorganizing its Office of Public Disclosure  and developing a new information system. Like SSA, several  agencies provided timetables for various activities that they  included in their plans to reduce backlog, but these did not include  milestones for outcome-oriented goals (for example, Defense  provided milestones for the process goals described above).
In addition to setting goals and milestones for those goals, in order  to demonstrate that goals are achieved, plans should also include  baselines against which results can be measured. In the case of  backlog, these numbers can differ from day to day, so specifying a  baseline is crucial. Baselines can be defined on the basis of a date  from which an agency intends to measure, the number it is using as  its baseline, or both. Publicly available baselines are important to  promote accountability as well as the transparency of government  processes.
However, most of the agency improvement plans do not clearly  define baselines for their existing backlogs. An exception was OPM:  in describing its goal to eliminate backlog by December 31, 2006, it  specified its present backlog as 107 requests. Similarly, the  Department of Education referred to measuring its success in terms  of having fewer open cases at the end of each year, based on a  backlog that it specified as 480 as of June 2, 2006. In other cases,  agencies did not specify whether they planned to measure from the  date of their plans, from the end of fiscal year 2005, or from some  other baseline. Some agencies did, however, describe plans to  perform analyses that would measure their backlogs so that they  could then establish the necessary baselines.
Our ongoing work suggests that factors contributing to these  deficiencies included difficulties in coordinating responses among  components in large decentralized agencies and limitations in the  way that agency systems track FOIA processing. In addition, neither  the Executive Order nor Justice guidance established a baseline  date for measuring the backlog or directed agencies to establish  such a baseline. Uncertainty regarding defined baselines could  hinder the measurement of progress in reducing backlog. Without  clearly defined baselines, specific objectives, and timetables for  reducing backlog, the risk is that agency heads, Justice, the  Congress, and the public could be hampered in determining whether  and how well agencies have achieved the Executive Order’s aims of  improving FOIA processing and agency disclosure of information.
When we complete our ongoing review and analysis, we expect to   make recommendations aimed at improving agency implementation  of the Executive Order, including efforts to reduce and eliminate  backlog.
In summary, FOIA continues to be a valuable tool for citizens to  obtain information about the operation and decisions of the federal  government. Since 2002, agencies have received increasing numbers  of requests and have also continued to increase the number of  requests that they process. In addition, agencies continue to grant  most requests in full. However, the rate of increase in pending  requests is accelerating.
Given these continuing trends, the President’s Executive Order  creates, among other things, a renewed, results-oriented emphasis  on improving request processing and reducing the backlog of  pending requests. However, our ongoing work suggests that  agencies are not yet fully complying with the order’s requirements  for measurable, outcome-oriented goals and associated timetables.  In addition, agencies have not all established clear baselines for  their existing backlogs. Without a baseline measurement and  tangible steps for addressing the accumulation of pending cases, the  heads of these agencies may be limited in their ability to measure  and evaluate success in implementing their plans as the President’s  order requires. Accordingly, in moving forward, it will be important  for Justice and the agencies to continue to refine these plans so that  the goal of reducing backlogs can be fully realized and the federal  government can remain responsive to citizen needs. When we  complete our ongoing work, we expect to  provide  recommendations to help move this process forward.
Mr. Chairman, this completes my prepared statement. I would be  happy to respond to any questions you or other Members of the  Subcommittee may have at this time.
section_title: Contact and Acknowledgements
paragraphs: If you should have questions about this testimony, please contact  me at (202) 512-6240 or via e-mail at koontzl@gao.gov. Other major  contributors included Barbara Collier, Vernetta Marquis, Alan  Stapleton, Shawn Ward, and Elizabeth Zhao.
section_title: Attachment 1: Freedom of Information Act Exemptions
paragraphs: Exemption number  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.  Inter-agency or intra-agency memorandums or letters which would not be available by law  to a party other than an agency in litigation with the agency.  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 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: Attachment 2. Median Processing Times Reported
paragraphs: The attached tables present median processing times as reported by  agencies in their annual FOIA reports in fiscal years 2004 and 2005.  To provide context, we include numbers of requests processed for  each agency or component. We also indicate (in columns headed  “±”) whether the median days to process rose (+), fell (–), or  remained unchanged (=). (We also use “~” to indicate other types of  changes, such as the establishment of a new component.)
Agencies report median processing times according to processing  tracks: that is, some agencies divide requests into simple and  complex categories and process these in separate tracks, whereas  others use a single track. Accordingly, the tables show these tracks  where applicable. In addition, agencies are required to subject some  requests to expedited processing, and these are reported as a  separate track.
subsections: section_title: Agency for International Development
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.  ~ other change (change in reporting, new component, etc.)
section_title: Central Intelligence Agency
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2004  2005  2004  2005  ±  ~ other change (change in reporting, new component, etc.)
section_title: Department of Homeland Security
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No. (a)   n/a ~ (a) (a) (a) (a)
14  (a) (a)
48 (a)
28  (a)
61 + 30 ~ 16 +178 +  210 ~  21 =  149 +  (a)
45 + n/a ~ 2 –105,567  85,307  14 (a)
16  (a)
45 + 27,850 19,532 17 ~ (a)
31 (a) (a) (a)
17 – 16 + 35 – n/a   n/a ~ 12 –  13 –  242 ~  3 –  ~ other change (change in reporting, new component, etc.)
Component did not exist.
section_title: Department of Commerce
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2004  2005  2004  2005  ±   12   –  ~ other change (change in reporting, new component, etc.)
section_title: Department of Defense
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2005 16   –  12,972 11,385 2005  2004  2005 ±   –  ~ other change (change in reporting, new component, etc.)
section_title: Department of Energy
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No. (a) (a) (a) (a) (a)
No.
No. ~ other change (change in reporting, new component, etc.)
Component did not exist.
section_title: Department of the Interior
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
6,206  (a)
30 (a) (a)
63  (a)
25  2–64  (a)64 (a)  (a) (a) (a) (a) (a) (a)  (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a)  (a) (a) (a) (a) (a) (a)  (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) (a) ~ other change (change in reporting, new component, etc.)
Statistics not broken down by component.
section_title: Department of Justice
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
89 + 19 + 16 + 8 + 10 + 8 = (b) (b) (c) (c)
No.
No.
15 – 22  137  139 + (a) (a) (a) (a) (a)
3.5 + 0 = 26 + ~ other change (change in reporting, new component, etc.)
Component did not exist.
section_title: Department of Labor
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
No.
No. ~ other change (change in reporting, new component, etc.)
section_title: Department of Transportation
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No. ~ other change (change in reporting, new component, etc.)
section_title: Department of Education
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2005  2004  2005 ±    35  ~ ~ other change (change in reporting, new component, etc.)
section_title: Environmental Protection Agency
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2005  2004  2005 ±  19 = ~ other change (change in reporting, new component, etc.)
section_title: General Services Administration
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2004  2005  2004  2005  ±  ~ other change (change in reporting, new component, etc.)
section_title: Department of Health and Human Services
paragraphs: Two tables are provided for this department, because its  components report both multitrack (simple and complex)  processing and single-track processing.
No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No. (a) (a) (a)
No.
4  2005 ±  69 + (a) (a) (a)
No.
380  Indian Health Services  158,277  151,428  National Institutes of  Health 10,583  ~ other change (change in reporting, new component, etc.)
Component did not exist.
section_title: Department of Housing and Urban Development
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No. ±  160 –  35 +  2004 2005 ± 22 – 70 + 2004 2005 ±  65 – 21 = ~ other change (change in reporting, new component, etc.)
section_title: National Aeronautics and Space Administration
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2004  2005  2004  2005  ±    19   +  2005  2004  2005 ±    15   –  ~ other change (change in reporting, new component, etc.)
section_title: Nuclear Regulatory Commission
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2004  2005  2004  2005  ±    12   +  2005  2004  2005 ±    20  –  ~ other change (change in reporting, new component, etc.)
section_title: National Science Foundation
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
2004  2005  ±  14   –  ~ other change (change in reporting, new component, etc.)
section_title: Office of Personnel Management
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
2005  2004  2005  ±  14   +  ~ other change (change in reporting, new component, etc.)
section_title: Small Business Administration
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.  ~ other change (change in reporting, new component, etc.)
section_title: Social Security Administration
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.  ~ other change (change in reporting, new component, etc.)
section_title: Department of State
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No.
2004  2005  2004  2005  ±    14   +  2005  2004  2005 ±   136   –  ~ other change (change in reporting, new component, etc.)
section_title: Department of the Treasury
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No. ~ other change (change in reporting, new component, etc.)
section_title: Department of Agriculture
paragraphs: No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No. +  increase   ~ other change (change in reporting, new component, etc.)
section_title: Department of Veterans Affairs
paragraphs: The department reports all processing in one track, but it refers to  this track as complex, rather than single track.
No. = number of requests processed; Days = median days to process; ± = change from 2004 to 2005  No.
No. (a) (a)
No.
No. (a) ~ 60 + ~ other change (change in reporting, new component, etc.)
Component did not exist.
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